Petition — Hernandez v. Air France

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

Supreme Court, U. S.

s FIL ED

FEB 16 1977

AEL RODAK, JR., CLERK

In the

Supreme Court of the United States

Octoser Term, 1976

76-1132

JULIO JOSE MARTINEZ HERNANDEZ, ET AL.,

PETITIONERS,

Vv.

AIR FRANCE,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Stanuey L. Fevpster, Esq.

P.O. Box 2552

San Juan, Puerto Rico 00903

Counsel for Petitioners

Fevpstern, Geri, Toro & HERNANDEZ

Of Counsel

Blanchard Press, Inc., Boston, Mass. — Law Printers

INDEX

Page

I eno ke ce one wWulew baat) 1

ER Se Me eee ne 2

Question Presented... 2

Treaties 3

I hee. ST as pit eh at, 3

Reasons for the Allowance of the Writ 4

IT.

has rendered a decision in conflict with deci-

sions of the Court of Appeals for the Second

Circuit and the Court of Appeals for the

Third Cirenit. 7

The Court of Appeals for the First Circuit

has decided an important question of federal

law which has not been, but should be, settled

by this Court.

Conclusion

Appendix:

Memorandum Opinion of District Court, In re

Tel Aviv, 405 F.Supp. 154

Opinion of Court of Appeals, No. 76-1146,

November 19, 1976

Judgment of the Court of Appeals, November

19, 1976

Warsaw Convention, 49 Stat. 3000 TS 876

(1934)

Montreal Agreement, 31 Fed. Reg. 7302

(1966)

Evangelinos v. Trans World Airlines, Inc.,

No. 75-1990 (3d Cir., May 4, 1976)

ii Index

TABLE OF CITATIONS

Cases

Page

Bacardi Corporation of America v. Domenech, 311 U.S.

ne ERNE Gah ete xis Bane, Br 2 4

Day v. Trans World Airlines, lee. 528 F.2d 31 (2d Cir.

1975) Certiorari denied, 45 US.LW. 3280 (U.S.

Oct. 4, 1976) | ...., BESS Ue

Evangelinos v. Trans World Astinee, Inc., No. 75-1990

(3 Cir., May 4, 1976), Petition for veheartag en banc

viata June 3, 1976 4, 6, 7, 8, 11

Evangelos v. Trans World Airlines, Inc., 396 F.Supp.

95 (W.D. Pa. 1975). 12

Hlusserl v. Swiss Air Transport Co., 351 F.Supp. 702

(S.D. NY. 1972) aa 7

In re Tel Aviv, 405 F.Supp. 154 (D.P.R. 197: >) 1, 2, 4,7

Martinez v. Air France, No. 76-1146, (1 Cir. Nov. 19,

1976) 11

MacDonald vy. Air Canada, 429 F.2d 1402 (1 Cir. 1971) 8

United States v. Carver, 260 U.S. 482 (1923) i)

Treaties

Warsaw Convention, 49 Stat. 3000 TS 876 (1934)

5, 8,9, 10, 11

Montreal Agreement, 31 Fed. Reg. 7302 (1966) _.. 6, 10

Statutes

28 U.S.C. Section 1254 (1)

Section 1292(b) (1970)

Section 1331 (1958)

Section 1332 (1964) ..........

ww - bo

In the

Supreme Court of the United States

Octoser Term, 1976

No.

JULIO JOSE MARTINEZ HERNANDEZ, ET AL.,

PETITIONERS,

AIR FRANCE,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the First Circuit, entered in the above entitled case, on

November 19, 1976.

Opinions Below

The memorandum of opinion and order of the District

Court for the District of Puerto Rico on respondent’s

motion for summary judgment and petitioners’ cross-mo-

tions for partial summary judgment is reported as /n re

Tel Aviv, 405 F.Supp. 154 (D.P.R. 1975), and is printed as

Appendix A, pp. 13-20. The opinion of the Court of Appeals

for the First Circuit, not yet reported, is printed as Ap-

pendix B, pp. 21-31.

Jurisdiction

The judgment of the Court of Appeals for the First Cir-

cuit was entered on November 19, 1976 and copy thereof

is appended to this petition as Appendix C, p. 32. The

jurisdiction of this Court is invoked under 28 U.S.C. Section

1254 (1).

Question Presented

The question presented for review is:

Are the victims of a terrorist attack perpetrated

while passengers are clearing immigration and await-

ing delivery of baggage entitled to the protection of

. Article 17 of the Warsaw Convention?

The question comprises the following subsidiary

questions:

Is a distinction justified between operations of em-

barking and operations of disembarking in the ap-

plication of article 17 of the Warsaw Convention?

Should the applicability of article 17 of the Warsaw

Convention depend upon varying procedures at dif-

ferent airports?

Are not the victims entitled to the more liberal inter-

pretation of the treaty?

Treaties Involved

The Convention For Unification Of Certain Rules Re-

lating To International Transportation By Air (The War-

saw Convention), 49 Stat. 3000 TS 876, reprinted in 49

U.S.C. Section 1502 note (1970), is set forth in pertinent

part in Appendix D.

Agreement CAB 18900 (The Montreal Agreement), 31

Fed. Reg. 7302 (1966), is set forth in Appendix E.

Statement

This petition encompasses three separate actions filed

in the United States District Court for the District of

Puerto Rico, which were consolidated for purposes of

appeal to the Court of Appeals for the First Cireuit. The

basis for federal jurisdiction in the court of first instance in

each of the cases was federal question (treaty) jurisdic-

tion. 28 U.S.C. Section 1331 (1958). Petitioners German De

Oleo Encarnacion (Civil No. 174-73 in the District Court)

and Julio Jose Martinez Hernandez (Civil No. 313-73 in

the District Court) also based jurisdiction on diversity of

citizenship. 28 U.S.C. Section 1332 (1964).

Each of the petitioners was a member, or is related to a

deceased member, of a large group of Puerto Rico tourists

traveling 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 terminal. There, they presented their passports for

inspection by Israeli immigration officials and then passed

into the 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 plain-

tiff and plaintiffs’ decedents.

Cross motions for summary judgment were filed in the

District Court in each case. Petitioners’ motions for partial

summary judgment on the issue of liability were denied,

and respondent’s motions for summary judgment were

granted. 405 F. Supp. 154. A consolidated interlocutory

appeal, 28 U.S.C. Sections 1292(b) (1970), to the Court

of Appeals for the First Circuit was taken. The decision of

the District Court was affirmed. Julio Jose Martinez Her-

nandez, et al. v. Air France, No, 76-1146 (1st. Cir. Nov. 19,

1976), App. P. 21.

“”~

Reasons for the Allowance of the Writ

I. -Txue Court or Appears For tue First Crrcurr Has

RenpDERED a Decision 1x Conriict Wirn Decisions oF

THE Court or APPEALS FOR THE SECOND CIRCUIT AND THE

Tump Circuit.

The Court of Appeals for the First Circuit appears to

accept and apply the tripartite test of activity, location, and

carrier control enunciated in Day v. Trans World Airlines,

Inc., 528 F.2d 31, 33 (2d Cir. 1975), certiorari denied,

45 U.S.L.W. 3280 (U.S. Oct. 4, 1976), and applied partially

in Evangelinos v. Trans World Airlines, Inc., No. 75-1990

(3d Cir. May 4, 1976), petition for rehearing en banc

granted, June 3, 1976, App. p. 49. Nevertheless, the re-

stricted application of the test conflicts with the principles

on which the decision in the Second and Third Circuits were

based.

In Day the Second Circuit adopted a relatively broad

construction of Article 17 of the Convention to afford pro-

tection to the passengers, 528 F.2d at 34, that protection now

ranking high among the goals which the Warsaw signa-

tories seek to serve. 528 F.2d at 37. The Court adopted the

view that interpretation of a treaty must change to be

consistent with changing times. 528 F.2d at 35. This view

is echoed in the decision of the Third Circuit which refers

to the dangers of violence, whether in the form of ter-

rorism, hijacking or sabotage, as being ‘‘ . . today so

closely associated with air transportation ...’’ App. p. 55.

Contrasted with this approaci to interpretation and appli-

cation is that of the First Circuit in the instant case, which

seeks to determine and apply the intent of the drafters as of

the time the Convention was initially adopted.

‘We are persuaded that the delegates understood em-

barkation and disembarkation as essentially the phy-

sical activity of entering or exiting from an aircraft,

rather than as a broader notion of initiating or ending

a trip.’’ App. p. 28.

The discussion following this statement of the applicable

principle of interpretation as seen by the First Circuit

acknowledges the conflict between the approach of this

Court and those of the Second and Third Circuits. The

Court below rejects holding the carrier liable in cases such

as the one at bar based on modern tort law theories. It

rejects distribution among all air travelers of the losses

occasioned by tragedies such as that giving rise to the

present case. This rejection is based on fear of doing vio-

lence to the history and language of the Warsaw Conven-

tion. App. p. 28.

Such approach ignores totally the subsequent conduct of

the parties signatory in adopting the Montreal Agreement,

expounded at length in Day, 528 F.2d at 36-37, and also re-

ferred to in Evangelinos at footnote 7, App. p. 52. While

appearing to apply the same test as the other Circuits and

to reach a different result on the facts, the decision in this

case really results from the application of a restrictive,

historically inaccurate test. The quotation given above

from the opinion herein essentially adopts a location test

limited to the aircraft or immediate means of access there-

to or egress therefrom. That test was discarded by the

original drafters of the Convention, as the Courts have

recognized. Day v. Trans World Airlines, Inc., 528 F.2d at

34-35. The Court of Appeals for the Second Circuit is of

the opinion that the minutes of the Warsaw proceedings un-

dermine the contention that the delegates wished to imple-

ment a rigid rule based soley on location of the accident.

528 F.2d at 35. oe

The decision of the Court of Appeals herein conflicts so

openly with the decisions in Day and Evangelinos, supra,

that both of the latter cases would have resulted in judg-

ments for the defendant if the same criteria were applied.

This conflict is best demonstrated in the words of each of

the Courts.

The Court of Appeals for the First Circuit states:

‘‘A fundamental premise of the argument for expand-

ing carrier liability in this case is that the risk of death

or injury in a terrorist attack is appropriately regarded

as a characteristic risk of air travel. Cf. Day, 528

F.2d at 37-38; Evangelinos, slip opinion at 7. We do not

think that this can be said of the sort of senseless act of

violence involved in this case. The risk of violence at

the hands of zealots is all too present in any public

place whether it be a bank, courthouse, university

campus, an Olympic village, or airport. Unlike the risk

of hijacking, see Husserl v. Swiss Air Transport Co.,

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

curiam, 485 F.2d 1240 (2d Cir. 1973), where the air-

craft and the fact of air travel are prerequisites to

the crime, we think the risk of random attack such as

that which gave rise to this litigation is not a risk

characteristic of travel by aircraft, but rather is a

risk of living in a world such as ours. See Evangelinos,

supra, F.2d at (Seitz, C.J., dissenting) (slip

op. at 3).’’ App. pp. 28-29 (footnote omitted).

The Court of Appeals for the Second Circuit, in contrast,

stated in Day, supra:

‘*Since 1929, the risks of aviation have changed dra-

matically in ways unforeseeable by the Warsaw fram-

ers. Air travel hazards, once limited to aerial dis-

asters, have unhappily come to include the sort of

terrorism exemplified by the Athens attack. As that

incident graphically demonstrates, these new perils

often spill over into the airline terminal.’’ 528 F.2d at

37-38. (footnote omitted).

The Court of Appeals for the Third Circuit agrees that

violence is closely associated with air transportation.

‘‘Since the danger of violence — whether in the form

of terrorism, hijacking or sabotage — is today so

closely associated with air transportation, we have

little difficulty in concluding that the plaintiffs in this

case were not located in a ‘safe place,’ far removed

from risks now inheren‘ in air transportation. We

note that another terrorist attack on airline passengers

recently occurred in Israel. See Jn re Tel Aviv, supra

at note 9. To conclude otherwise would be to freeze the

Warsaw Convention in its 1929 mold, when air travel

was in its infancy, and to ignore current air travel pro-

cedures and the special risks created by the type of

violence that resulted in this tragedy.’’ Evangelinos

v. Trans World Airlines, Inc., supra, App. p. 55.

As a matter of fact, the terrorist attack in the case at bar

is even more closely associated with air travel and with the

control of the defendant since the terrorists in this case,

unlike those in Day and Evangelinos, were passengers on

the same aircraft as the victims. Contrary to the conclu-

sion drawn by the Court of Appeals for the First Cireuit,

the aircraft and the fact of air travel were intimately re-

lated to and were ‘‘prerequisites’’ to the crime in this case.

The interpretative technique of the Court of Appeals

herein is even more restrictive than that contended for by

the defendant in any of the cases. Since the Courf of Ap-

peals looks to the original intent at the time of adoption of

the Warsaw Convention, and since terrorist attacks in con-

nection with air travel were unknown at that time, con-

sistent application of its principles of interpretation would

require the Court to exclude terrorist attacks from coverage

as not falling within the term ‘‘accident’’. Some intimation

of this view is given by a prior decision of the same Court.

MacDonald v. Air Canada, 439 F.2d 1402, 1405 (1st Cir.

1971). Nevertheless, the defendant in each of the cases has

stipulated that the attack was an ‘‘accident.’’

This Honorable Court has directed that where a provi-

sion of a treaty fairly admits of two constructions, one

restricting, the other enlarging rights which may be claimed

under it, the more liberal interpretation is to be preferred.

Bacardi Corporation of America vy. Domenech, 311 U.S.,

150, 163 (1940). It is evident that the Court of Appeals

adopted the more restrictive interpretation in this case:

‘* |. we think that the rejection of the CITEJA draft

does imply that the carrier is not to be held liable for

all damage which might befall a traveler as he goes

about various activities in the airport before or after

his flight.’’ App. p. 28. (footnote omitted).

The apparent conflict between the decision herein and the

decisions in the Second and Third Circuits should he re-

solved by this Court, with the formulation of th. ap-

propriate test for determination of coverage.

Il. Tue Covrt or Appeats ror THE First Crrcum Ilas

Decipep AN ImporTANT QvuesTION oF FrpERAL Law

Wuicn Has Nor Been, But Suovutp Be, SEtTrLep By

Tuts Court.

This Honorable Court has not interpreted Article 17 of

the Warsaw Convention. An authoritative interpretation

will result in considerable economy for the courts and for

litigants. The formulation of the appropriate test for

determination of coverage will guide judges and attorneys.

Extrajudicial disposition of claims is hardly possible when

the parties do not even have a yardstick for measuring

values, and certainly the applicability of Article 17 is an

important factor in determining values.

The denial of certiorari in Day v. Trans World Airlines,

Inc., supra, 45 U.S.L.W. 3280 (U.S. Oct. 4, 1976), cannot be

interpreted as approval and tacit adoption of the test there

postulated. United States v. Carver, 260 U.S. 482, 490 (1923).

The disaffection of the Court of Appeals for the First Cir-

cuit for that test is apparent from the decision of which

review is here sought. Neither uniformity nor certainty are

promoted when relatively insignificant and fortuitous de-

tails become determining factors. In the view of the Court

of Appeals in this case, such details as whether or not pas-

sengers have occasion to retrieve baggage, the distance at

which the aircraft is parked from the terminal building, and

that tenuous element of ‘‘control’’, are the bases of decision.

If the specific procedures followed at each air terminal

are the determinative factors, a settled rule is never pos-

sible, since procedures vary from place to place and from

time to time. Petitioners do not contend that such pro-

cedures are totally irrelevant, but rather that concern

with ‘‘control’’ of the procedures is in effect rejection of

the concept of absolute liability which is the keystone of

the Warsaw Convention as supplemented by the Montreal

Agreement. The resistance of the Court below to this con-

cept is typified by the statement :

‘‘There is no indication that airline personnel were

dictating to the passengers how they were to go about

retrieving their baggage or leaving the terminal.’’

App. p. 26.

Airlines rarely dictate in this fashion. More importantly,

this statement begs the issue. The question, and test, really

is whether the passenger was in the course of any of the

operations of embarking or disembarking — not who con-

trolled those operations. Can the result differ logically

depending upon whether a passenger is required to deposit

baggage with a porter at the entrance to the terminal build-

ing or with a clerk at an interior check-in counter? The

significant facts are not physical location, nor control of

the activity, but rather the nature of the activity. The

passenger would not be at the particular time and place

were he not engaged in the operation of embarking or

disembarking from an aircraft. The liability’ of the carrier

does not depend upon notions of fault or avoidability of

the incident, but rather upon the relation of carrier and

passenger.

Naturally some reasonable line must be drawn. The

Court of Appeals for the Third Cireuit in Evangelinos,

supra, speaks in terms of the carrier’s control over the

passengers and the likelihood of injury by causes inherent

in air transportation. App. p. 58. It is respectfully sub-

mitted that the two factors of ‘‘relationship’’ and a ‘‘risk

inherent. in air transportation’’ furnish the basis for

fashioning an appropriate test. The former is the basis of

coverage, and the latter limits the remoteness of the oc-

currence, The element of ‘‘control’’ is unsatisfactory since it

remains in large measure at the discretion of the carrier or

third parties. If the carrier requires passengers to check-

in at a fixed time before departure, control exists in the

sense that the passengers’ presence in the terminal is dic-

tated by the carrier. However, if the carrier does not

provide a fixed waiting area, are not the passengers then

left as ‘‘free agents roaming at will through the terminal’’?

Day, supra, 528 F.2d at 33; Martinez v. Air France, App.

p. 26. Yet their presence and freedom to roam is the result

of their being required to commence the operations of

embarking at a time and place determined by the carrier.

If a terrorist attack occurred in a waiting room provided

by the carrier for its passengers, there would hardly be

doubt as to coverage. Should the failure to take measures

designed for passenger safety then result in exoneration,

even under traditional concepts of negligence? Article 21

of the Convention protects the carrier against passengers

who deviate from instructions and established procedures.

The suggestion has been made that a distinction is to be

made between the operations of embarking and operations

of disembarking, Evangelinos, supra, App. pp. 54-55; Mar-

tinez v. Air France, supra, App. p. 25. Article 17 indicates

no basis for such distinction. The distinction, if justified,

should be defined. As observed elsewhere, many of the

steps involved in embarkation are just as essential, al-

though in reverse, to the steps one must take in disembark-

ing, Evangelinos v. Trans World Airlines, Inc., 396 F. Supp.

95, 102 (W.D. Pa. 1975).

An authoritative interpretation by this Court will benefit

all. The formulation of an appropriate test of coverage

will reduce future litigation.

Conclusion

For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be

granted.

Respectfully submitted,

Sranuey L. Fevpstery, Esq.

P.O. Box 2552

San Juan, Puerto Rico 00903

Counsel for Petitioners

APPENDIX A

In re TEL Aviv.

Civ. A. Nos, 518-72 et al. and Civ.

Nos. 174-73, 313-73 and 481-73.

United States District Court,

D. Puerto Rico.

Dec. 9, 1975.

Jorge Ortiz Toro, Hato Rey, P.R., for plaintiffs.

William J. Junkerman, New York City, and Hartzell,

Ydrach, Mellado, Santiago, Perez & Novas, San Juan,

Puerto Rico, for Air France.

Harvey B. Nachman, San Juan, Puerto Rico, for plain-

tiffs.

Memorandum of Opinion and Order of the Court on

defendant’s motion for Summary Judgment and plain-

tiffs’ cross-motions for partial Summary Judgment.

Gicnoux, District Judge.

These three actions seek to recover damages for deaths

and personal injuries sustained by arriving international

passengers on defendant airlines as the result of a terrorist

attack in the baggage area of the Terminal Building of

Lod International Airport near Tc! Aviv, Israel, on May 30,

1972. Plaintiffs claim liability without fault under the pro-

visions of the Warsaw Convention, 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 Agreement, is inapplicable to these actions, and

1 Plaintiffs have waived the additional claims asserted in their

original complaints under the 1955 Hague Protocol and the 1971

Guatemala Protocol, neither of which has been ratified by the

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

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

plaintiffs have filed cross-motions for partial summary

judgment on the issue of liability, asserting that the Con-

vention does apply.

The material facts are undisputed. Plaintiff in No. 174-73

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

members of a large group of Puerto Rico tourists traveling

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 Build-

ing. The passengers descended movable stairs to the ground

and then walked or rode on a bus to the terminal. There,

they presented their passports for inspection by Israeli

immigration officials and then passed into the main ‘bag-

gage area of the terminal. While the passengers were await-

ing the arrival of the last baggage from the plane, the three

Japanese terrorists removed their luggage from the con-

veyor belt, produced submachine guns and hand grenades,

and opened fire upon persons in the baggage area, killing

or wounding many, including plaintiff and plaintiffs’ dece-

dents. 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

FE] Al, the Israeli National Airline, not by Air France.

[1] The Warsaw Convention, which was conecededly ap-

plicable to plaintiffs’ flight, provides uniform rules for

international 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:

2The Montreal Agreement is not a treaty. Rather, it takes the

form of an agreement among international air carriers, of which

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

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).

[2] Defendant concedes that the terrorist attack at

Lod Airport was an ‘‘accident’’ within the meaning of

Article 17. See Husserl v. Swiss Air Transport Co., 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 Building, were

no longer ‘‘in the course of any of the operations of...

disembarking,’’ and hence that the Convention does not

apply to plaintiffs’ claims. For the reasons to be stated,

the Court concludes that the Convention is not applicable to

these cases.

The disposition of the motions presently before the Court

is clearly controlled by the recent decisions of the Court of

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

originating, 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. Kriendler, supra, ch. 12A ; Lowenfield & Men-

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

L.Rev. 497 (1967).

The Montreal Agreement did not modify in any way the meaning

of Article 17 of the Convention, the issue presented by the instant

motions. See MacDonald v. Air Canada, 439 F.2d 1402, 1405n. (1st

Cir. 1971) ; Evangelinos v. Trans World Airlines, Inc., 396 F.Supp.

95, 100 (W.D.Pa.1975) ; 1 L. Kriendler, supra, §12A-2.

Appeals for this circuit in MacDonald v. Air Canada, 439

F.2d 1402 (1st Cir. 1971), a case substantially on all fours

with the present actions. The plaintiff in MacDonald, an ar-

riving 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 War-

saw Convention, as modified by the Montreal Agreement.

The Court of Appeals 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 applic-

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

first, that the plaintiff had not shown there was an ‘‘ac-

cident,’’ 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

occurred in the course of disembarking operations. In this

connection, Chief Judge Aldrich, writing for the court,

stated, id. at 1405:

{T]he Convention requires that the accident occur in

the course of disembarking operations. If these words

are given their ordinary meaning, it would seem that

the operation of disembarking has terminated by the

time the passenger has descended from the plane by

the use of whatever mechanical means have been sup-

plied and has reached a safe point inside of the ter-

minal, even though he may remain in the status of a

passenger of the carrier while inside the building. Ex-

amination of the Convention’s original purposes re-

inforees this view. The most important purpose of the

Warsaw Conference was the protection of air car-

riers from the crushing consequences of a catastrophic

accident, a protection though necessary for the eco-

nomic health of the then emerging industry. Partially

in return for the imposition of recovery limits, and

partially out of recognition of the difficulty 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.

II Conference International De Droit Prive Aerien,

4-12 Octobre 1929, at 135-36 (1930); Message from the

President of the United States Transmittting a Con-

vention for the Unification of Certain Rules, Sen.

Exee.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, ap-

plies to accidents which are far removed from the op-

eration of aircraft.* Without determining where the

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

bar.

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) ; Klein v. KLM

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

Dep’t 1974) (injury on baggage conveyor belt in terminal

at Lod International Airport). See also Mache v. CIE Air

France, [1967] Revue Francaise de Droit Aerien 348 (Cour

d’appel, Rouen) (injury in fall in airport customs yard).

Cf. Evangelinos v. Trans World Airines, 396 F.Supp. 95,

101-02 (W.D.Pa. 1975) (pre-fight terrorist attack in ter-

* Neither does the imposition of liability without fauit, 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.

minal). But cf. Day v. Trans World Airlines, Inc., 393

F.Supp. 217 (S.D.N.Y. 1975) (same).?

Plaintiffs in the instant case argue that 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 Convention

specifically intended to exclude from coverage accidents

occurring to passengers inside an airport terminal building.

Minutes, Second International Conference on Private Aero-

nautical Law, October 4-12, 1929, Warsaw 67-84, 205-06

(R. Horner & D. Legrez transl. 1975) (‘‘Warsaw Min-

utes’’),

The Convention was the ultimate product of two con-

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

Conference established an interim committee, the Comite

International Technique d’Experts Juridiques Aeriens (CI-

TEJA), 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 carrier liable ‘‘from the

3The District Courts in Day and Evangelinos divided over

whether passengers injured in a terrorist attack at Hellenikon

Airport, 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 enbarking and hence that the Convention applied; the Evan-

gelinos court disagreed and held the Convention not applicable.

The Day court, however, expressly distinguished the question of

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

We distinguish readily the case of Felismina v. Trans World

Airlines, Inc., 13 Avy. 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. ...

moment when travelers, goods or baggage enter in the aero-

drome of departure to the moment when they leave the

aerodrome of destination.’’ Jd. at 264. This provision was

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

or on board an aircraft . . .’’ Jd. at 206. With respect 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 fo. 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 operations of em-

barking or disembarking.’’ Jd. at 82-84, 205-06.

Whatever uncertainties there may be as to the precise line

drawn by Article 17, the above legislative history indicates

plainly that the intent of the Warsaw Conference in reject-

ing the CITEJA draft and in declining to impose in Article

17 the same extent of carrier liability for passengers as that

provided by Article 18 for goods and baggage was clearly

to exclude liability as to passengers for accidents which

oceur after the passenger ‘‘has reached a safe point inside

of the terminal,’’ and ‘‘which are far removed from the

operation of aircraft.’’ MacDonald v. Air 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 donc les accidents

survenus au cours des operations preliminaires a ]’em-

barquement et posterieures au debarquement, soit no-

tamment pendant la periode du deplacement du pas-

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

presence dans les locaux de l’aerogare. O. Riese & J.

LaCour, Precis de Droit Aerien 265 (1951).

See A. Giannini, Saggi di Diritto Aeronautico 233 (1932),

and D. Goedhuis, Minutes, Fifth International Congress on

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

in Evangelinos v. Trans World Airlines, supra at 101).

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 .. .

disembarking.’’ 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; defendent’s motions for summary judg-

ment are granted; and judgment will be entered dismissing

plaintiffs’ complaints to the extent that they claim juris-

diction or liability without fault under the provisions of the

Warsaw Convention, as modified by the Montreal Agree-

ment.

It is so ordered.

APPENDIX B

United States Court of Appeals

For the First Circuit

No. 76-1146

JUILO JOSE MARTINEZ HERNANDEZ, er at.,

PLAINTIFFS, APPELLANTS,

AIR FRANCE,

DEFENDANT, APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Epwarp T. Gienovux,* U.S. District Judge]

(405 F. Supp. 154)

Before Corrin, Chief Judge,

McEnvee and CampBELL, Circuit Judges.

Stanley L. Feldstein and Nachman, Feldstein, Gelpi, Toro &

Hernandez on brief for appellants.

William J. Junkerman, Vicente M. Ydrach, Randal R. Craft, Jr.,

and William F. Martin, Jr. on brief for appellee.

November 19, 1976

Corrin, Chief Judge. This case arises out of an act of

terrorism which occurred on May 30, 1972, in the baggage

retrieval area of the terminal building at Lod International

Airport located near Tel Aviv, Israel. Plaintiffs-appellants

seek damages from defendant air carrier for death and per-

sonal injury, asserting that under the Warsaw Convention,

* Of the District of Maine, sitting by designation.

as modified by the Montreal Agreement,' the defendant is

liable without regard to fault for damages sustained in the

attack. This is an interlocutory appeal, 28 U.S.C. § 1292(b)

(1970), from the district court’s dismissal of plaintiffs’

Warsaw Convention claims. The single issue presented is

whether the attack occurred while the passengers were dis-

embarking within the meaning of article 17 of the Conven-

tion, which reads as follows:

‘‘The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any otner 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.’’

Because the precise circumstances surrounding the ter-

rorist act of May 30, 1972 are highly relevant to our dispo-

sition, we reproduce the pertinent portion of the district

court’s careful summation of the facts: et

‘*{Plaintiffs] were members of a large group of

Puerto Rico tourists traveling on defendant Air

France’s Flight No. 132 to Tel Aviv. Flight No. 132

The Convention for Unification of Certain Rules Relating to

International Transportation by Air, the Warsaw Convention,

done Oct. 12, 1929, 49 Stat. 3000, reprinted in 49 U.S.C. § 1502

note (1970), was the product of two international conferences held

in the 1920s to establish uniform rules relating to air carriage

documents and liability. Air carrier liability for death and bodily

injury of passengers, article 17, was limited in amount to proven

damages up to approximately $8300, article 22, with a rebuttable

presumption of carrier negligence, article 20. Dissatisfaction with

the low liability limit culminated in the American notification of

denunciation on November 15, 1965. A compromise was reached,

the Montreal Agreement of 1966, see 44 C.A.B. 819 (1966),

reprinted in 49 U.S.C. § 1502 note (1970), and the denunciation

notice was withdrawn. The air carriers agreed, pursuant to article

22(1), to raise the liability limit to $75,000 and to waive the due

care defense. The result is a strict liability cause of action for

damages within the scope of article 17. See generally, Lowenfeld

& Mendelsohn, The United States and the Warsaw Convention,

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

originated in New York, with intermediate stops at

Paris and Rome. Three Japanese, in the service of a

Palestinian terrorist organization, bourded 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 mov-

able stairs to the ground and then walked or rode on a

bus to the terminal. There, they presented their pass-

ports for inspection by Israeli immigration officials

and then passed into the 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

plaintiff’s decedents.’’ In re Tel Aviv, 405 F. Supp.

154, 155 (D. P.R. 1975).

The district court, citing our decision in MacDonald v.

Air Canada, 439 F.2d 1402 (1st Cir. 1971), as a controlling

precedent, held that the attack did not occur during dis-

embarkation. In MacDonald we held that article 17 of the

Warsaw Convention was not applicable to injuries sus-

tained by an arriving passenger who fell in the baggage

pickup area of an airport, both because there was insuffi-

cient evidence that the fall was the result of an accident and

because the injury did not occur during disembarkation.

439 F.2d at 1404-05.

‘Tf these wurds are given their ordinary meaning, it

would seem that the operation of disembarking has

terminated by the time the passenger has descended

from the plane by the use of whatever mechanical

means have been supplied and has reached a safe point

inside the terminal... .’’ Jd. at 1405.

Other precedents concerning the application of article 17

to various factual situations involving arriving passengers

support this reading. The phrase ‘‘operations of .. . dis-

embarking’’ has been held not to cover injuries sustained

where a passenger was hurt by a conveyor belt in the bag-

gage pickup area, Klein v. KLM Royal Dutch Airlines, 46

App. Div. 2d 679, 360 N.Y.S. 2d 60 (1974), fell on an

escalator after leaving the plane via a jetway but before

reaching the health, immigration, baggage, and customs

stations, Felismima v. Trans World Airlines, Inc., 13 Av.

Cas. 17, 145 (S.D. N.Y. 1974), or fell over construction

debris in an open air customs area while walking from the

plane to the terminal, Mache v. Air France, [1967] Rev.

Fr. Droit Aerien 343 (Cour d’Appel, Rouen), aff’d [1970]

Rev. Fr. Droit Aerien 311 (Cour de Cassation).

Plaintiffs-appellants urge that MacDonald should be

reexamined in light of recent decisions involving the appli-

cability of article 17 to injuries sustained in a terrorist

attack on departing passengers. Day v. Trans World Air-

lines, Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 45

U.S.L.W. 3280 (U.S. Oct. 4, 1976); Evangelinos v. Trans

World Airlines, Inc., __ F.2d —— (3d Cir., May 4, 1976),

petition for rehearing en banc granted, June 3, 1976. Both

of these cases involved an August 5, 1973 terrorist attack

in which passengers departing from Athens were set upon

as they were lining up for security check and boarding at

the point of departure from the terminal to the aircraft,

under the direction and supervision of employees of the

carrier. Focusing on the activity in which the passengers

were engaged, their location, and the extent to which they

were under the control of the carrier, the Day and Evan-

gelinos courts held that the attack occurred during em-

barkation and thus imposed liability on the carrier. We do

not view our holding in MacDonald as necessarily foreclos-

ing the adoption of the Day-Evangelinos tripartite test,’

and we believe that the nature of a plaintiff’s activity when

injured, its location, and the extent to which the airline was

exercising control over plaintiff at the time of injury are

certainly relevant considerations in determining the appli-

eability of article 17. On the facts of this case, however,

the application of these criteria require the conclusion that

plaintiffs did not have a right to recover under article 17.

Considering first the passengers’ activity, we note that at

the time of the attack the passengers had already emerged

from the aircraft, descended the stairs from the plane to

the ground, traveled via bus or foot from the plane to

the terminal, and presented their passports to the Israeli

authorities. On these facts we do not believe it can be said

that the passengers were still engaged in any activity relat-

ing to effecting their separation from the aircraft. All that

remained to be done before the passengers left the airport

was to pick up their luggage. We observe that passengers,

who either carry no luggage or carry their luggage on the

plane, will have no occasion to retrieve their baggage. It

hardly seems, therefore, that such activity can constitute a

necessary step in becoming separated from a plane.* The

2 Both the Day court, 528 F.2d at 34 n. 8, and the Evangelinos

court, slip opinion at 6, suggested that the disembarkation situa-

tion was distinguishable.

3 Appellants suggest that ‘‘the operations of . . . disembarking’’

continue until the passengers retrieve their baggage, terming this

activity ‘‘the last contact between carrier and passenger,’’ and

noting that under article 18, a carrier’s liability for damage to

baggage extends until the baggage is retrieved. See article 18.

We think the drafting history rebuts any suggestion that the lia-

bility for personal injury and that for damages to baggage are

necessarily identical in scope. As we note infra, the framers re-

jected a rule imposing aerodrome to aerodrome liability for personal

injury. The history, moreover, indicates that the questions of

baggage liability and personal injury liability were intended to be

absolutely distinet, see Minutes, Second International Conference

on Private Aeronautical Law, October 4-12, 1929, Warsaw, p. 72

(R. Horner &. D. Legrez transi. 1975), and, for that reason, were

treated in separate articles.

passengers’ location also militates against article 17 cover-

age in this case since the attack occurred inside the terminal

building located approximately one-third to one-half mile

from the point where the aircraft was parked.

We also believe that the control factor weighs against

holding the carrier liable. In sharp contrast to the factual

situation in Day and Evangelinos, the passengers here were

not segregated into a group at the direction of airline em-

ployees. There is no indication that airline personnel were

dictating to the passengers how they were to go about

retrieving their baggage or leaving the terminal.® Rather,

the passengers appear to have been ‘‘free agents roaming

at will through the terminal.’’ Day, supra, 528 F.2d at 33.

Thus we conclude that this tragedy did not oceur during

disembarkation.

Our review of the drafting history of the Convention

reinforces our conclusion that article 17 does not cover this

ease. At the 1929 Warsaw conference the delegates ‘had

before them a draft prepared by a committee of experts,

Comite Internationale Technique d’Experts Juridique

Aeriens, CITEJA, which provided that the period of ear-

riage, and hence of carrier liability, extended.

* Although the relevance of control, as opposed to activity or

location, may be less apparent from the text and drafting history

of the treaty, but see Remarks of the French delegate, Minutes,

supra note 3 at 73 (the problem regarding the scope of liability

for passengers ‘‘arises from the fact that the traveler has his

independence’’), we think that inasmuch as the carrier’s duty to

protect passengers from the acts of third parties arises not fron:

the carrier’s ability to control the third party but from the relation-

ship between carrier and passenger, the scope of article 17 should

be limited to those situations either where the carrier has taken

charge of the passengers, or possibly where it customarily would

have done so, see generally, Restatement (Second) of Torts § 314A

(1965) ; Harper & Kime, The Duty to Control the Conduct of

Another, 43 Yale L. J. 886, 898-904 (1934).

Sit is true that there were Air France employees on hand at

the terminal, but their job appears to have been to weleome and

assist the passengers, not to prescribe procedures which passengers

were obliged to follow.

‘‘from the moment when the travelers, goods or bag-

gage enter in the aerodrome of departure, up to the

moment when they leave the aerodrome of destination

....? Minutes, supra note 3, at 67-68 [herinafter

‘*Minutes’’].

This proposal encountered opposition and provoked debate

among the delegates on the proper scope of carrier liability.

The discussion of liability for passengers centered on two

proposals: the initial aerodrome to aerodrome principle

and a less well articulated, more restrictive, view variously

expressed as ‘‘from the moment when the travelers have

boarded’’, Minutes 71, or ‘‘when [the passenger] embarks

on the aireraft’’, Minutes 82. Mr. Ripert of France ad-

vanced the view that it was pointless to seek a definitive

formula and therefore the text should

‘‘omploy a general formula — ‘during air carriage’ —

in leaving to the courts the duty of deciding in each

ease if one is within the contract of carriage.’’ Minutes

73.

Sir Alfred Dennis of Britain proposed that votes be taken —

on the ‘‘questions of principle’’ concerning carrier liability

and that the matter be submitted to the drafting committee.

Minutes 80. This proposal was adopted, and in the vote on

liability for passengers the CITEJA draft was rejected in

favor of the more restrictive view. Minutes 83. The draft-

ing committee produced the current language of article 17,

‘‘on board the aircraft or in the course of any of the oper-

6 The British delegate summed up the ‘‘question of principle’’

which could be put to a vote as follows: sass

‘*!A]s regards travelers, does liability begin, as it said in the

draft, upon the entrance into the aerodrome of departure,

or does it begin when the traveler is on board the aircraft?

Minutes 80.

Similarly, the Brazilian delegate stated:

‘It’s a question of saying, whether the liability of the carrier

begins as soon as the traveler enters into the aerodrome,

which is a public place, or when he embarks on the aircraft.

Minutes 82.

ations of embarking or disembarking’’, and this text was

adopted without further discussion. Minutes 166.

While it is true that this drafting history does not deter-

mine the precise meaning of article 17, we think it does

illuminate the intention of the Warsaw Convention drafters.

We are persuaded that the delegates understood embarka-

tion and disembarkation as essentially the physical activity

of entering or exiting from an aircraft, rather than as a

broader notion of initiating or ending a trip. Although the

delegates did not seek to resolve the line drawing problems

presented by close cases — cases in which the tripartite test

of Day-Evangelinos may be useful guides for decision —

we think that the rejection of the CITEJA draft does imply

that the carrier is not to be held liable for all damage

which might befall a traveler as he goes about various

activities in the airport before or after his flight.’

We recognize that an argument can be advanced for hold-

ing the carrier liable in cases such as the one at bar based

on modern tort law theories. It might be thought proper

to hold the carrier liable as a means of distributing among

all air travelers the losses occasioned by tragedies such as

that giving rise to the present case. See Day, supra, 528

F.2d at 34. We are not unsympathetic to this approach.

But, if its application is not to do violence to the history

and language of the Warsaw Convention, there should, it

seems to us, be a close logical nexus between the injury and

air travel per se.

A fundamental premise of the argument for expanding

carrier liability in this case is that the risk of death or

7 We note that the hypothetical cases which the delegates posed

as problems concerned such cases as accidents occurring as one

stepped onto the stairs leading to the aircraft, Minutes 78, 81, or

after boarding but before takeoff, Minutes 74, 77. By contrast

there was no doubt that injuries sustained, for example, while

eating in an airport restaurant, Minutes 72, walking through the

airport, Minutes 73, 75, or while walking through town during a

stopover, Minutes 80, would not be covered.

injury in a terrorist attack is appropriately regarded as a

characteristic risk of air travel. Cf. Day, 528 F.2d at 37-38;

Evangelinos, slip opinion at 7. We do not think that this

can be said of the sort of senseless act of violence involved

in this case. The risk of violence at the hands of zealots is

all too present in any public place whether it be a bank,

courthouse, university campus, an Olympic village, or air-

port. Unlike the risk of hijacking, see Husserl v. Swiss Air

Transport Co., 351 F. Supp. 702, 706-07 (S.D. N.Y. 1972),

aff’d per curiam, 485 F.2d 1240 (2d Cir. 1973), where the

aircraft and the fact of air travel are prerequisites to the

crime,® we think the risk of a random attack such as that

which gave rise to this litigation is not a risk characteristic

of travel by aircraft, but rather is a risk of living in a

world such as ours. See Evangelinos, supra, _— F.2d at ——

(Seitz, C.J., dissenting) (slip op. at 3).

We observe that to expand carrier liability under article

17 to include all terrorist attacks at airports would pro-

duce anomalous results. Under article 17, only passengers

could have a right to recover. It is unlikely, however, that

nonpassengers would be i .jured by attacks which occur in

locations such as baggage retrieval areas. To give pas-

sengers who are so injured a strict liability remedy against

the carrier — who, unlike the terminal operator, presum-

ably has no control over the situation — but to relegate

the nonpassengers to their remedies under local law, would

be odd indeed. It would seem to be more rational in this

grey area, not clearly involving disembarking, to treat pas-

sengers and nonpassengers alike. This would mean leaving

8 The distinction between the hijacking situation and the sort of

random attack involved in this case may at times be difficult to

draw. We note, for example, that the terrorists who perpetrated

the crimes at the Athens airport involved in the Day and Evan-

gelinos cases took hostages and demanded an aircraft with which

to escape after they carried out the attack on passengers waiting

in the transit lounge. See Day v. Trans World Airlines, Inc., 393

F. Supp. 217, 219 (S.D. N.Y.), aff’d, 528 F.2d 31 (2d Cir. 1975).

them to the remedies of local law. These, at least in most

cases, would not be illusory. Moreover, contemporary theo-

ries of cost allocation may well be reflected in the provisions

of local law.

We hold that on the particular facts of this case, where

the passengers were waiting for their baggage inside the

terminal building, had left the aircraft and its immediate

vicinity, and were no longer acting at the direction of the

carrier, the process of disembarkation had been completed

and article 17 of the Warsaw Convention, therefore, is not

applicable.

Affirmed.

McEntee, Circuit Judge (concurring). I concur in the

result reached by the court and in its reasoning to the

extent that it applies the criteria described in Day v: Trans

World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert.

denied, 45 U.S.L.W. 3280 (U.S. Oct. 4, 1976).1 That opinion

suggested that claims under Article 17 of the Warsaw Con-

vention are not to be resolved in terms of a simple location

test (where the injury occurred), but rather by application

of ‘‘a tripartite test based on activity (what the plaintiffs

were doing), control (at whose direction) and location.’’

Id, at 33. I believe that this tripartite test represents a

reasonable and flexible basis for analyzing Article 17 cases,

because it is consistent both with the terms of the Conven-

tion and with the realities of modern air travel. In my

opinion, the Second Circuit’s holding concerning the em-

barkation provision of Article 17 is equally applicable to

disembarkation cases:

1 See also Evangelinos v. Trans World Airlines, Inc., No. 75-1990

(3d Cir., May 4, 1976), petition for rehearing en bane granted,

June 3, 1976.

‘*We are of the view that the words ‘in the course of

any of the operations of embarking’ do not exclude

events transpiring within a terminal 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... .’’ Jd. at 33

(footnote omitted).

Examining the instant claim in the light of this tripar-

tite test, I am persuaded that Air France was no longer

in real control of the passengers’ activity when the terror-

istic attack took place.? Although, when viewed in terms

of the other two factors, this case presents a close question,

I believe that the airline’s control was so exiguous or even

non-existent that I do not think that Article 17 applies.

For these reasons, I concur in the judgment of the court.

2 In my opinion, a terroristic attack should be subjected to the

same analysis for Article 17 pui ses as any other tortious act.

Such an attack is one of the risks of modern air travel, and the

airlines would be liable should the attack occur ‘‘in the course of

any of the operations of embarking or disembarking.’’

APPENDIX C

United States Court of Appeals

For the First Circuit

No. 76-1146

JULIO JOSE MARTINEZ HERNANDEZ, ET AL.,

PLAINTIFFS, APPELLANTS,

AIR FRANCE,

DEFENDANT, APPELLEE.

JUDGMENT

Entered November 19, 1976

This cause came on to be heard on appeal from the

United States District Court for the District of Puerto

Rico, and was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the district

court is affirmed. No costs.

By the Court:

/s/ Dana H. Gatiup

Clerk.

[ec: Messrs. FELDSTEIN AND J UNKERMAN. }

APPENDIX D

WARSAW CONVENTION

49 Stat. 3000 TS 876

CONVENTION FOR UNIFICATION OF CERTAIN

Rues RELATING To INTERNATIONAL

TRANSPORTATION BY .\IR

The President of the German Reich, the Federal Presi-

dent of the Republic of Austria, His Majesty the King of

the Belgians, the President of the United States of Brazil,

Ilis Majesty the King of the Bulgarians, the President of

the Nationalist Government of China, His Majesty the King

of Denmark and Iceland, His Majesty the King of Egypt,

His Majesty the King of Spain, the Chief of State of the

Republic of Estonia, the President of the Republic of Fin-

land, the President of the French Republic, His Majesty

the King of Great Britain, Ireland, and the British Domin-

ions beyond the Seas, Emperor of India, the President of

the Hellenic Republic, His Most Serene Highness the Regent

of the Kingdom of Hungary, His Majesty the King of

Italy, His Majesty the Emperor of Japan, the President of

the Republic of Latvia, Her Royal Highness the Grand

Duchess of Luxemburg, the President of the United Mexi-

ean States, His Majesty the King of Norway, Her Majesty

the Queen of the Netherlands, the President of the Republic

of Poland, His Majesty the King of Rumania, His Majesty

the King of Sweden, the Swiss Federal Council, the Presi-

dent of the Czechoslovak Republic, the Central Executive

Committee of the Union of Soviet Socialist Republics, the

President of the United States of Venezuela, His Majesty

the King of Yugoslavia:

Having recognized the advantage of regulating in a

uniform manner the conditions of international transporta-

tion by air in respect of the documents used for such trans-

portation and of the liability of the carrier.

Have nominated to this end their respective Plenipoten-

tiaries, who, being thereto duly authorized, have concluded

and signed the following convention:

* * &

CuaptTer II]. Liasiity or Carrier

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 embark-

ing 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

ease of a landing outside an airport, in any place whatso-

ever.

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

tend to any transportation by land, by sea, or by river per-

formed outside an airport. If, however, such transporta-

tion takes place in the performance of a contract for

transportation by air, for the purpose of loading, delivery

or transshipment, any damage is presumed to proof to the

contrary, to have been the result of an event which took

place during the transportation by air.

Article 19

The carrier shall be liable for dzinage occasioned by

delay in the transportation by air of passengers, baggage,

or goods.

Article 20

(1) The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures to avoid

the damage or that it was impossible for him or them to

take such measures.

(2) In the transportation of goods and baggage the

carrier shall not be liable if he proves that the damage was

oceasioned by an error in piloting, in the handling of the

aircra{t, or in navigation and that, in all other respects, he

and his agents have taken all necessary measures to avoid

the damage.

Article 21

If the carrier proves that the damage was caused by or

contributed to by the negligence of the injured person the

court may, in accordance with the provisions of its own

law, exonerate the carrier wholly or partly from his liability.

Article 22

(1) In the transportation of passengers the liability of

the carrier for each passenger shall be limited to the sum of

125,000 frances. Where, in accordance with the law of the

court to which the case is submitted, damages may be

awarded in the form of periodical payments, the equivalent

capital value of the said payments shall not exceed 125,000

frances. Nevertheless, by special contract, the carrier and

the passenger may agree to a higher limit of liability.

(2) In the transportation of checked baggage and of

goods, the liability of the carrier shall be limited to a sum

of 250 franes per kilogram, unless the consignor has made

at the time when the package was handed over to the carrier,

a special declaration of the value at delivery and has paid

a supplementary sum if the case so requires. In that case

the carrier will be liable to pay a sum not exceeding the

declared sum, unless he proves that the sum is greater than

the actual value to the consignor at delivery.

(3) As regards objects of which the passenger takes

charge himself the liability of the carrier shall be limited

to 5,000 frances per passenger.

(4) The sums mentioned above shall be deemed to refer

to the French frane consisting of 654 milligrams of gold

at the standard of fineness of nine hundred thousandths.

These sums may be converted into any national currency

in round figures.

Article 23

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 subject to the provisions of

this convention.

Article 24

(1) In the eases covered by articles 18 and 19 any action

for -damages, however founded, can only be brought sub-

ject to the conditions and limits set out in this convention.

(2) In the cases covered by article 17 the provisions of

the preceding paragraph shall also apply, without prejudice

to the questions as to who are the persons who have the

right to bring suit and what are their respective rights.

Article 25

(1) The carrier shall not be entitled to avail himself of

the provisions of this convention which exclude or limit

his liability, if the damage is caused by his wilful miscon-

duct or by such default on his part as, in accordance with

the law of the court to which the case is submitted, is con-

sidered to be equivalent to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail

himself of the said provisions, if the damage is caused

under the same circumstances by any agent of the carrier

acting within the scope of his employment.

Article 26

(1) Receipt by the person entitled to the delivery of

baggage or goods without complaint shall be prima facie

evidence that the same have been delivered in good condi-

tion and in accordance with the document of transportation.

(2) In case of damage, the person entitled te delivery

must complain to the carrier forthwith after the discovery

of the damage, and at the latest, within 3 days from the

date of receipt in the case of baggage and 7 days from the

date of receipt in the case of goods. In case of delay the

complaint must be made at the latest within 14 days from

the date on which the baggage or goods have been placed

at his disposal.

(3) Every complaint must be made in writing upon the

document of transportation or by separate notice in writing

dispatched within the times aforesaid,

(4) Failing complaint within the times aforesaid, no

action shall lie against the carrier, save in the case of

fraud on his part.

Article 27

In the case of the death of the person liable, an action

for damages lies in accordance with the terms of this

convention against those legally representing his estate.

Article 28

(1) An action for damages must be brought, at the option

of the plaintiff, in the territory of one of the High Con-

tracting Parties, either before the court of the domicile of

the carrier or of his principal place of business, or where

he has a place of business through which the contract has

been made, or before the court at the place of destination.

(2) Questions of procedure shall be governed by the

law of the court to which the case is submitted.

Article 29

(1) The right to damages shall be extinguished if an

action is not brought within 2 years, reckoned from the

date of arrival at the destination, or from the date on

which the aircraft ought to have arrived, or from the date

on which the transportation stopped.

(2) The method of calculating the period of limitation

shall be determined by the law of the court to which the

case is submitted.

Article 30

(1) In the case of transportation to be performed by

various successive carriers and falling within the defini-

tion set out in the third paragraph of article 1, each ear-

rier who accepts passengers, baggage or goods shall be

subject to the rules set out in this convention, and shall be

deemed to be one of the contracting parties to the contract

of transportation insofar as the contract deals with that

part of the transportation which is performed under his

supervision.

(2) In the case of transportation of this nature, the

passenger or his representative can take action only against

the carrier who performed the transportation during which

tht accident or the delay occurred, save in the ease where, by

express agreement, the first carrier has assumed liability

for the whole journey.

(3) As regards baggage or goods, the passenger or con-

signor shall have a right of action against the first car-

rier, and the passenger or consignee who is entitled to

delivery shall have a right of action against the last car-

rier, and further, each may take action against the carrier

who performed the transportation during which the destruc-

tion, loss, damage, or delay took place. These carriers shall

be jointly and severally liable to the passenger or to the

consignor or consignee.

CuapTer V. GENERAL AND FINAL PROVISIONS

Article 32

Any clause contained in the contract and all special

agreements entered into before the damage occurred by

which the parties purport to infringe the rules laid down

by this convention, whether by deciding the law to be

applied, or by altering the rules as to jurisdiction, shall

be null and void. Nevertheless for the transportation of

goods arbitration clauses shall be allowed, subject to this

convention, if the arbitration is to take place within one

of the jurisdictions referred to in the first paragraph of

article 28.

Article 33

Nothing contained in this convention shall prevent the

carrier either from refusing to enter into any contract

of transportation or from making regulations which do not

conflict with the provisions of this convention.

Article 34

This convention shall not apply to international trans-

portation by air performed by way of experimental trial

by air navigation enterprises with the view to the estab-

lishment of regular lines of air navigation, nor shall it

apply to transportation performed in extraordinary cireum-

stances outside the normal scope of an air carrier’s business.

Article 35

The expression ‘‘days’’ when used in this convention

means current days, not working days.

Article 36

This convention is drawn up in French in a single copy

which shall remain deposited in the archives of the Ministry

for Foreign Affairs of Poland and of which one duly

certified copy shall be sent by the Polish Government to the

Government of each of the High Contracting Parties.

Article 37

(1) This convention shall be ratified. The instruments of

ratification shall be deposited in the archives of the Min-

istry for Foreign Affairs of Poland, which shall give

notice of the deposit to the Government of each of the

High Contracting Parties.

(2) As soon as this convention shall have been ratified

by five of the High Contracting Parties it shall come into

force as between them on the ninetieth day after the deposit

of the fifth ratification. Therafter it shall come into force

between the High Contracting Parties which shall have

ratified and the High Contracting Party which deposits its

instrument of ratification on the ninetieth day after the

deposit.

(3) It shall be the duty of the Government of the Republic

of Poland to notify the Government of each of the High

Contracting Parties of the date on which this convention

comes into force as well as the date of the deposit of each

ratification.

Article 38

(1) This convention shall, after it has come into force,

remain open for adherence by any state.

(2) The adherence shall be effected by a notification

addressed to the Government of the Republic of Poland,

which shall inform the Government of each of the High

Contracting Parties thereof.

(3) The adherence shall take effect as from the ninetieth

day after the notification made to the Government of the

Republic of Poland.

Article 39

(1) Any one of the High Contracting Parties may de-

nounce this convention by a notification addressed to the

Government of the Republic of Poland, which shall at once

inform the Government of each of the High Contracting

Parties.

(2) Denunciation shall take effect six months after the

notification of denunciation, and shall operate only as re-

gards the party which shall have proceeded to denunciation.

Article 40

(1) Any High Contracting Party, may at the time of

signature or of deposit of ratification or of adherence,

declare that the acceptance which it gives to this convention

does not apply to all or any of its colonies, protectorates,

territories under mandate, or any other territory subject

to its sovereignty or its authority, or any other territory

under its suzerainty.

(2) Accordingly any High Contracting Party may sub-

sequently adhere separately in the name of all or any of its

colonies, protectorates, territories under mandate, or any

other territory subject to iis sovereignty or to its authority

or any other territory under its suzerainty which have been

thus excluded by its original declaration.

(3) Any High Contracting Party may denounce this con-

vention, in accordance with its provisions, separately or for

all or any of its colonies, protectorates, territories under

mandate, or any other territory subject to its sovereignty

or to its authority, or any other territory under its

sovereignty.

Article 41

Any High Contracting Party shall be entitled not earlier

than two years after the coming into force of this conven-

tion to call for the assembling of a new international con-

ference in order to consider any improvements which may

be made in this convention. To this end it will communicate

with the Government of the French Republic which will

take the necessary measures to make preparations for such

conference.

This convention, done at Warsaw on October 12, 1929,

shall remain open for signature until January 31, 1930.

APPENDIX E

‘AGREEMENT

‘*The undersigned carriers (hereinafter referred to as ‘the

Carriers’) hereby agree as follows:

‘*1. Each of the Carriers shall, effective May 16, 1966, in-

clude the following in its conditions of carriage, including

tariffs embodying conditions of carriage filed by it with

any government.

‘*linsert tariff ]

‘*2. Each Carrier shall, at the time of delivery of the

ticket, furnish to each passenger whose transportation is

governed by the Convention, or the Convention as amended

by the Hague Protocol, and by the special contract described

in paragraph 1, the following notice, which shall be printed

in type at least as large as 10 point modern type and in ink

contrasting with the stock on (i) each ticket; (ii) the "piece

of paper either placed in the ticket envelope with the ticket

or attached to the ticket; or (iii) on the ticket envelope:

‘“Tinsert Notice ]

‘*3. This Agreement shall be filed with the Civil Aero-

nautics Board of the United States for approval pursuant

to Section 412 of the Federal Aviation Act of 1958, as

amended and filed with other governments required.

The agreement shall become effective upon approval by

said Board pursuant to said Section 412.

‘*4. This Agreement may be signed in any number of

counterparts, all of which shall constitute one Agreement.

Any carrier may become a party to this Agreement by

signing a counterpart hereof and depositing it with said

Civil Aeronautics Board.

‘*5. Any carrier party hereto may withdraw from this

Agreement by giving twelve (12) months’ written notice

of withdrawal to said Civil Aeronautics Board and the

other Carriers parties to the Agreement.’’

“TARIFF

‘*The Carrier shall avail itself of the limitation of liability

provided in the Convention for the Unification of Certain

Rules Relating to International Carriage by Air signed at

Warsaw October 12, 1929, or provided in the said Conven-

tion as amended by the Protocol signed at The Hague

September 28, 1955. However, in accordance with Article

22(1) of said Convention, or said Convention as amended

by said Protocol, the Carrier agrees that, as to all inter-

national transportation by the Carrier as defined in the

said Convention or said Convention as amended by said

Protoco] which, according to the Contract of Carriage, in-

cludes a point in the United States of America as a point

of origin, point of destination, or agreed stopping place.

‘*(1) The limit of liability for each passenger for

death, wounding or other bodily injury shall be the sum

of U.S. $75,000 inclusive of legal fees and costs, except

that, in case of a claim brought in a State where pro-

visions is made for separate award of legal fees and

costs, the limit shall be the sum of U.S. $58,000 exclusive

of legal fees and costs.

‘¢(2) The carrier shall not, with respect to any claim

arising out of the death, wounding, or other bodily

injury of a passenger, avail itself of any defense under

Article 20(1) of said Convention or said Convention

as amended by said Protocol.

‘‘Nothing herein shall be deemed to affect the rights and

liabilities of the carrier with regard to any claim brought

by, on behalf of, or in respect of any person who has wil-

fully caused damage which resulted in death, wounding, or

other bodily injury of a passenger.”’

‘““ADVICE TO INTERNATIONAL PASSENGERS

ON LIMITATION OF LIABILITY

‘*Passengers on a journey involving an utlimate destina-

tion or a stop in a country other than the country of

origin are advised that the provisions of a treaty known

as the Warsaw Convention may be applicable to the entire

journey, including any portion entirely within the country

of origin or destination. For such passengers on a journey

to, from, or with an agreed stopping place in the United

States of America, the Convention and special contracts of

carriage embodied in applicable tariffs provide that liabil-

ity of [certain carriers (name of carrier) and certain other

carriers} parties to such special contracts for death of or

personal injury to passengers is limited in most cases to

proven damages not to exceed U.S. $75,000 per passenger,

and that this liability up to such limit shall not depend on

negligence on the part of the carrier. For such passengers

traveling by a carrier not a party to such special contracts

or on a journey not to, from, or having an agreed stopping

place in the United States of America, liability of the

carrier for death or personal injury to passengers is limited

in most to approximately U.S. $8,290 or U.S. $16,580.

‘‘The names of Carriers parties to such special contracts

are available at all ticket offices of such carriers and may

be examined on request.

‘* Additional protection can usually be obtained by purch-

asing insurance from a private company. Such insurance is

not affected by any limitation of the carrier’s liability

under the Warsaw Convention or such special contracts

of carriage. For further information please consult your

airline or insurance company representative.’’

“LIABILITY LIMITATIONS OF WARSAW

CONVENTION AND HAGUE PROTOCOL

‘Order Approving Agreement

‘* Adopted by the Civil Aeronautics Board at its office in

Washington, D.C., on the 13th day of May, 1966.

‘‘The Convention for the Unification of Certain Rules

Relating to International Transportation by Air, generally

known as the Warsaw Convention, creates a uniform

body of law with respect to the rights and responsibilities of

passengers, shippers, and air carriers in international air

transportation. The United States became a party to the

Convention in 1934, and eventually over 90 countries like-

wise became parties to the Convention. On November 15,

1965, the U.S. Government gave notice of denunciation of

the Convention, emphasizing that such action was solely

because of the Convention’s low limits of liability for per-

sonal injury or death to passengers. Pursuant to Article 39

of the Convention this notice would become effective upon

6 months’ notice, in this case, May 15, 1966. Subsequently,

the International Air Transport Association (IATA) made

efforts to effect an arrangement among air carriers, foreign

air carriers, and other carriers (including carriers not

members of [ATA) providing the major portions of inter-

national air carriage to and from the United States to in-

crease the limitations of liability now applicable to claims

for personal injury and death under the Convention and the

Protocol. The purpose of such action is to provide a basis

upon which the United States could withdraw its notice of

dervnciation.

‘“‘The arrangement proposed has been embodied in an

agreement (Agreement CAB 18900) between various air

carriers, foreign air carriers, and other carriers which has

been filed with the Board pursuant to Section 412(a) of

the Federal Aviation Act of 1958 and Part 261 of the

Board’s economic regulations and assigned the above-

designated CAB number.

‘*By this agreement, the parties thereto bind themselves

to include in their tarrifs, effective May 16, 1966, a special

contract in accordance with Article 22(1) of the Convention

or the Protocol providing for a limit of liability for each

passenger for death, wounding, or other bodily injury of

$75,000 inclusive of legal fees, and, in case of a claim

brought in a State where provision is made for separate

award of legal fees and costs, a limit of $58,000 exclusive

of legal fees and costs. These limitations shall be applicable

to international transportation by the carrier as defined in

the Convention or Protocol which includes a point in the

United States as a point of origin, point of destination, or

agreed stopping place. The parties further agree to pro-

vide in their tariffs that the Carrier shall not, with’ respect

to any claim arising out of death, wounding, or other

bodily injury of a passenger, avail itself of any defense

under Article 20(1) of the Convention or the Convention as

amended by the Protocol. The tariff provisions would stipu-

late, however, that nothing therein shall be deemed to affect

the rights and liabilities of the Carrier with regard to any

claim brought by, on behalf of, or in respect of any person

who has willfully caused damage which results in death,

wounding, or other bodily injury of a passenger.

‘‘The carriers by the agreement further stipulate that they

will, at time of delivery of the tickets, furnish to each pas-

senger governed by the Convention or the Protocol and by

the special contract described above, a notice in 10 point

type advising international passengers of the limitations of

liability established by the Convention or the Protocol, or

the higher liability agreed to by the special contracts pur-

suant to the Convention or Protocol as described above.

The agreement is to become effective upon approval by this

Board, and any carrier may become a party to it by signing

a counterpart thereof and depositing it with the Board.

Withdrawal from the agreement may be effected by giving

12 months’ written notice to the Board and the other Carrier

parties thereto,

‘* As indicated, the decision of the U.S. Government to serve

notice to denounce the Convention was predicated upon the

low liability limits therein for personal injury and death.

The Government announced, however, tliat it would be pre-

pared to withdraw the Notice of Denunciation if, prior to

its effective date, there is a reasonable prospect for inter-

national agreement on limits of liability for international

transportation in the area of $100,000 per passenger or on

uniform rules without any limit of liability, and if pending

such international agreement there is a provisional arrange-

ment among the principal international air carriers pro-

viding for liability up to $75,000 per passenger.

‘*Steps have been taken by the signing carriers to have tar-

iffs become effective May 16, 1966, upon approval of this

agreement, which will increase by special contract their lia-

bility for personal injury or death as described herein. The

signatory carriers provide by far the greater portion of

international trnsportation to, from, and within the United

States. The agreement will result in a salutory increase

in the protection given to passengers from the increased lia-

bility amounts and the waiver of defenses under Article

20(1) of the Convention or Protocol. The U.S. Government

has concluded that such arrangements warrant withdrawal

of the Notice of Denunciation of the Warsaw Convention.

Implementation of the agreement will permit continued ad-

herence to the Convention with the benefits to be derived

therefrom, but without the imposition of the low liability

limits therein contained upon most international travel in-

volving travel to or from the United States. The stipulation

that no tariff provision shall be deemed to affect the rights

and liabilities of the carrier with regard to any claim

brought by, on behalf of, or in respect of any person who

has willfully caused damage which resuts in death, wound-

ing or other bodily injury of a passenger operates to

diminish any incentive for sabotage.

‘‘Upon consideration of the agreement, and of matters re-

lating thereto of which the Board takes notice, the Board

does not find that the agreement is adverse to the public

interest or in violation of the Act and it will be approved.

‘* Accordingly, pursuant to the provisions of the Federal

Aviation Act of 1958, and particularly sections 102, 204(a),

and 412 thereof :

“‘It is ordered, That: 1. Agreement CAB 18900 is approved.

‘This order will be published in the Feperau RecisreEr.

‘*By the Civil Aeronautics Board.

‘*[sEaL] Harotp R. SanpeRson,

: Secretary.’’

APPENDIX F

United States Court of Appeals

For the Third Circuit

No. 75-1990

CONSTANTINE EVANGELINOS, CALLIOPPI

EVANGELINOS, ERMA EVANGELINOS, STELLA

EVANGELINOS and MARY JULIA EVANGELINOS,

APPELLANTS

Vv.

TRANS WORLD AIRLINES, INCORPORATED

(D. C. Civil No. 74-165)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Argued February 3, 1976

Before Srrrz, Chief Judge, and Van Dusen

and Weis, Circutt Judges

Donald L. Very, Esq., Tucker, Arensberg & Ferguson, Pitts-

burgh, Pa., Attorneys for Appellants

Michael L. Magulick, Esq. & Roberi E. Wayman, Esq., Wayman,

Irvin, Trushel & McAuley, Pittsburgh, Pa., Attorneys for Appellee.

Of Counsel: John N. Romans, Esq., P. G. Pennoyer, Jr., Esq.,

Charles K. O’Neill, Esq. & Hilton H. Strothers, Jr., Esq., Chad-

bourne, Parke, Whiteside & Wolff, New York City, N. Y.

OPINION OF THE COURT

(Filed May 1, 1976)

Van Dusen, Circuit Judge.

On August 5, 1973, the Transit Lounge of the Hellinkon

Airport in Athens, Greece, was the scene of a vicious ter-

rorist attack on the passengers of TWA’s New York bound

Flight 881. The principal question presented by this inter-

locutory appeal’ concerns the liability of Trans World Air-

lines under the terms of the Warsaw Convention, 49 Stat.

3000, et seq. (1934), as modified by the Montreal Agree-

ment of 1966, 31 Fed. Reg. 7302 (1966).? The district court

concluded that the terms of the Convention were not ap-

plicable to the plaintiffs at the time of the terrorist attack

and accordingly granted TWA’s motion for partial sum-

mary judgment, dismissing the claim under the Warsaw

Convention.? Evangelinos v. Trans World Airlines, 396 F.

Supp. 95 (W. D. Pa. 1975). We reserve and remand.

The facts of the attack on which this litigation is based

have been exhaustively summarized elsewhere* and need

not be repeated here. It is enough to state briefly that, at the

time of the terrorist attack, plaintiffs had already com-

pleted all the steps necessary to boarding the aircraft ex-

cept (1) undergoing physical and handbag searches,® and

(2) physically proceeding from the search area to the air-

craft some 250 meters away. Immediately after Flight 881

1 By amended order dated June 26, 1975, the district court certi-

fied this appeal pursuant to 28 U.S.C. § 1292(b) (232-33a).

On July 21, 1975, we granted plaintiff-appellants’ petition for

permission to appeal. Jurisdiction is based on 28 U.S.C, §§ 1331

and 1332. Plaintiffs are citizens of Ohio. Defendant is incorpo-

rated in the State of Delaware and has its principal place of busi-

ness in New York.

2 Both the Convention, a treaty officially entitled ‘‘A Conven-

tion for the Unification of Certain Rules Relating to International

Transportation by Air,’’ and the Montreal Agreement are re-

printed at 49 U.S.C. § 1502 note (1970).

3 The complaint alleged both absolute liability under the Warsaw

Convention, as modified, and negligence.

* Evangelinos v. Trans World Airlines, Inc., supra at 96-98, and

Day v. Trans World Airlines, 528 F.2d 31 (2d Cir. 1975), petition

for cert. filed, 44 U.S.L.W. 3546 (U.S., Mar. 30, 1976).

5 These searches were required and conducted by the Greek

Government and were prerequisites of being permitted to leave the

airport by plane. TWA had two guards stationed inside the

terminal building immediately beyond the search procedure area.

EE ae CT a ETN

was announced over the Transit Lounge loudspeaker, the

passengers were instructed to form two lines in front of

Departure Gate 4. And, while all but a handful were stand-

ing in those lines awaiting the search procedure,® two

Palestinian terrorists fired bursts of automatic weapons

fire in the general direction of the TWA queues and hurled

hand grenades, which exploded in the vicinity.

Under the terms of the Warsaw Convention, as modified,

TWA is absolutely liable to a limit of $75,000. per pas-

6 The district court stated that:

‘* entrance to [the Transit Lounge] is restricted to passengers

ticketed and scheduled to depart on international flights of the

. carriers operating out of the terminal and to other personnel,

who are not passengers, needed to service the area.... At...

Gate |4], 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 depart. 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.

‘** 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 building. Two sets of

stairs were located on the east side of the terrace leading to a

waiting area where there was a bus . . . 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 completed the various

step required and began to queue up in two lines preparatory to

proceeding through the hand baggage and physical searches. . . .

‘‘ 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 referred to. The great

majority 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.”’

Pages 97-98 of 396 F. Supp. (footnotes omitted).

senger if an incident which causes passenger injury falls

within the ambit of Article 17 of the Convention.’ Article

17 provides :

‘*The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger if the

accident which caused the damage so sustained took

place on board the aircraft or in the course of any of

the operations of embarking or disembarking.’’ (Km-

phasis added.)

TWA does not dispute the district court’s conclusion that

a terrorist attack on airline passengers is an ‘‘accident’’

within the meaning of Article 17. Thus the central question

is whether the terrorist attack took place ‘‘in the course

of any of the operations of embarking... .”’

Our task has been significantly facilitated by the Second

Circuit’s recent decision in Day v. Trans World Airlines,

528 F.2d 31 (2d Cir. 1975), petition for cert. filed; 44 U.S.

L. W. 3546 (U.S., Mar. 30, 1976), an identical case arising

7 As originally conceived and drafted, the Convention effected

a bargain in which airline passengers traded a monetary limita-

tion on damages—the equivalent of $8,300. per passenger—for the

establishment of a rebuttable presumption of liability on the part

of the earrier for ‘‘accidents’’ falling within the ambit of the

Convention. Warsaw Convention, Chap. III. American dissatis-

faction with this bargain, especially the limits on damages, ulti-

mately led to the Montreal Agreement,.a voluntary agreement

between air carriers governing international transportation that

involved a United States location. Pursuant to the Agreement

each participating airline filed with the Civil Aeronautics Board

a contract under which the damages limit was raised to $75,000.

and the various carriers agreed not to assert any of the affirmative

defenses provided in Article 20 of the Convention. The effect was

contractual creation of a new regime of absolute liability for dam-

age arising from incidents falling within the Convention. For

excellent discussions of the background of the Warsaw Convention

and the Montreal Agreement, see Block v. Compagnie Nationale

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

905 (1968) ; Lowenfeld & Mendelsohn, The United States and the

Warsaw Convention, 80 Harv. L. Rev. 497 (1967).

out of the same incident. See also Leppo v. T'rans World

Airlines, Inc., Mise, 2d (N.Y. Sup. Ct. No, 21770-

1973, Trial Term Part 62, Decision of Mar. 10, 1976, N. Y.

County). In the Day case, Chief Judge Kaufman, in a

thorough and scholarly opinion, carefully analyzed the

history and purposes of the Warsaw Convention, as modi-

fied. Emphasizing the American experience under the Con-

vention, the current expectation of air carriers governed

by the Convention as modified, and the considerations mil-

itating in favor of liability in this case, the Day court unan-

imously coneluded that the activities of the TWA passengers

in this case fell within the purview of the phrase

‘*the operations of embarking.’’ We agree with the result

reached in Day and note that there is a substantial interest

in uniformity of decision in this area. Cf. Block v. Compag-

nie Nationale Air ’rance, 386 F.2d 323, 337 (5th Cir. 1967),

cert. denied, 392 U.S. 905 (1968).

Giving the phrase ‘‘in the course of any of the operations

of embarking’’ a common sense construction, we agree at

the outset with the plaintiffs’ contention that we must

examine the nature of the activity in which plaintiffs were

engaged to determine if that activity can fairly be con-

sidered part of ‘‘the operations of embarking.’’ Nothing

in the Convention defines the term ‘‘operations of embark-

ing’’ or otherwise delimits the period of liability prior to

actual boarding. Nevertheless, for substantially the same

reasons expressed in Day v. Trans World Airlines, supra,

528 F.2d at 33-34, we believe it is appropriate under all

the facts and circumstances of this case to view the activity

of undergoing pre-boarding searches as part of the ‘‘oper-

ations of embarking.’”

® Among the relevant factors are activity, control and location.

We emphasize the activity in which plaintiffs were involved, the

control by defendant of the plaintiffs at the time of the accident.

and the relation of the terrorist attack causing the accident to

air travel.

The undisputed facts reveal that, at the time of the at-

tack, the plaintiffs had completed virtually all the activities

required as a prerequisite to boarding and were standing in

line at the departure gate ready to proceed to the aircraft.

The plaintiffs’ injuries were sustained while they were

acting at the explicit direction of TWA and while they were

performing the final act required as a prerequisite to board-

ing busses employed by TWA to take the Evangelinos

family to the aircraft. More significantly, at the time these

operations had commenced, Flight 881 had already been

ealled for final boarding. As a result, TWA passengers were

no longer mingling over a broad area with passengers of

other airlines. Instead, acting pursuant to instructions,

they were congregated in a specific geographical area

designated by TWA and were identifiable as a group asso-

ciated with TWA’s Flight 881.

By announcing the flight, forming the group and direct-

ing the passengers as a group to stand near the departure

gate, TWA had assumed control over the group. This con-

clusion is supported by the fact that TWA service personnel

- were standing at Gate 4, guiding the passengers, and TWA

security personnel were present. Under these circumstances,

it is reasonable to conclude that TWA had begun to perform

its obligation as air carrier under the contract of carriage

and that TWA, by announcing the flight and taking control

of the passengers as a group, had assumed responsibility

for the plaintiffs’ protection. Thus, for all practical pur-

poses, ‘‘the operations of embarking’’ had begun.

Neither MacDonald vy. Air Canada, 439 F.2d 1402 (1st

Cir. 1971), nor the French case of Maché v. Air France,

Rev. Fr. Droit Arien 343 (Cour d’Appel de Rouen 1967),

aff’d Rev. Fr. Droit Arien 311 (Cour de Cassation 1970)

(reprinted in translation as Exhibit B to appellee’s brief),

is inconsistent with the conclusion that ‘‘the operations of

embarking’’ had commenced at the time of the accident in

6 ne

this case. First, both cases invoved disembarking, where

the nature and extent of the carrier’s control over the

passenger and the type of activity in which plaintiff was

engaged differed significantly from the case at bar.® Fur-

ther, both the MacDonald and Maché courts considered the

Convention’s original goal of developing rules to govern the

risks then thought to be inherent in air carriage and con-

cluded, on that basis, that the Convention did not apply

because the plaintiffs had reached ‘‘safe’’ points, distant

from such risks. MacDonald v. Air Canada, supra at 1405;

Maché v. Air France, supra. See also, Sullivan, The Codifi-

eation of Air Carrier Liability by International Conven-

tion, 7 Journal of Air Law 1, 20 (1936). Since the danger

of violence — whether in the form of terrorism, hijacking or

sabotage — is today so closely associated with air trans-

portation, we have little difficulty in concluding that the

plaintiffs in this case were not located in a ‘‘safe place,’’

far removed from risks now inherent in air transportation.

We note that another terrorist attack on airline passengers

recently occurred in Israel. See In re Tel Aviv, supra at

note 9. To conclude otherwise would be to freeze the War-

saw Convention in its 1929 mold, when air travel was in its

infaney, and to ignore current air travel procedures and

the special risks created by the type of violence that re-

sulted in this tragedy.

9See also In Re Tel Aviv (D.P.R. Dec. 9, 1975) (Nos. 518-72

et. al.). In MacDonald, the plaintiff was injured while she was

waiting for her baggage in the baggage claim area of Boston

International Airport. She was in no sense under the control of

the airline or acting as a part of a group under direct airline

supervision. In Maché, the plaintiff was injured while walking

from the aireraft. He was following an Air France stewardess

and it is not completely clear whether his route varied from hers,

since the mahnole cover did not ‘‘rock’’ causing her to fall. Also

we note that the plaintiff in Maché was arguing against the appli-

eability of the Warsaw Convention and that the court in Mac-

Donald held that the plaintiff’s injuries in that case were not

eaused by an ‘‘accident’’ within the meaning of Article 17.

Nor are we convinced by TWA’s principal argument that

‘the operations of embarking’’ can never occur within the

physical confines of an air terminal building and that the

Warsaw Convention is, therefore, inapplicable. Starting,

as we must, with the actual language used in Article 17, we

are struck by the fact that nothing in Article 17 suggests a

limitation on the period of liability based strictly on the

location of the ‘‘operations of embarking or disembarking.”’

To the contrary, the contrast between the phrase ‘‘while

on board the aircraft’? and the phrase ‘‘in the course of

any of the operations of embarking .. .’’ indicates that the

draftsmen of Article 17 made a conscious choice to go

beyond a mere location test. Further, adoption of the strict

location test »dvanced by TWA could lead to differing

results resting solely on the fortuity of where passengers

are placed at the time of injury. In the absence of plain

language compelling such a conclusion, we reject it.

Recognizing that nothing on the face of Article 1% sup-

ports their argument, TWA directs our attention to the

treaty making history of that Article. The pertinent history

consists of debates centered around Article 20 of the draft

Convention prepared by a. small committee of experts,

Comite Internationale Technique d’Experts Juridique Aer-

iens (CITEJA), for consideration at Warsaw. Article 20

of the CITEJA draft provided in part:

‘‘The period of carriage, for the application of the

provisions of the present chapter [Liability of the

Carrier] shall extend from the moment when the

travellers ... enter the aerodrome of departure, up to

the moment when they leave the aerodrome of destina-

Ge. ce”

When the draft Article 20 came up for consideration, it

provoked considerable debate between those who endorsed

the expansive aerodrome-to-aerodrome period of liability

and those who espoused a more restrictive view. Minutes,

Oa ee ee

Second International Conference on Private Aeronautical

Law, October 4-12, 1929, Warsaw, 67-84 (R. Horner & D.

Legrez transl. 1975) (hereinafter Minutes). Ultimately the

principal of aerodrome-to-aerodrome liability was put to a

vote and defeated. Minutes at 82-83. The problem of drafting

a new article in conformity with the vote was then re-

ferred to a drafting committee and Article 17 in its present

form emerged.

TWA contends that the rejection of the CITEJA draft

demonstrates that the delegates intended to exclude from

the period of liability the time during which passengers

are inside air terminal buildings. We disagree. While the

rejection of the CITEJA draft indisputably reflected an

intent to restrict the expansive period of liability envis-

ioned by Article 20, nothing in the debates indicates that

the line was finally and unalterably drawn at the walls of

airline terminal buildings.’® Surely if such an explicit line

had been drawn, the language of Article 17 would now

reflect it. Moreover, the debates indicate confusion among

the delegates themselves as to the meaning of the rejection

of the CITEJA draft. Minutes at 83-84." We are, there-

fore, especially reluctant to draw conclusions which are

’?

10—Tn 1929, the word ‘‘aerodrome’’ meant the entire airfield

property on which there were several buildings used by passengers,

as opposed to the single, large, air terminal building character-

istic of major airports in this country today.

11 We do not find the debates as clear as the dissent indicates.

Although the delegates agreed that ‘‘rejection of |Draft Article

20] led to acceptance of the opposite principle,’’ it is unclear as to

what that ‘‘opposite principle’’ was. In Day, supra, the Second

Circuit concluded that the Convention had adopted the views of

Prof. Georges Ripert of France—the ‘‘dean of French writers on

civil law’’—who ‘‘proposed that the article be recast in terms

broad enough to allow the courts to take into account the facts of

each case.’’ 528 F.2d at 34-35. In any event, it is clear from the

final language of Article 17 that the strict Brazilian proposal,

as articulated by the delegate from Great Britain, which would

have limited the period of liability to the time when passengers

were ‘‘on board the aircraft,’’ was not adopted.

“ eaten ee ran oo —— —

not reflected in the work of a drafting committee that had

the advantage of considering the debates contemporan-

eously.

The most that can be said is that the draftsmen rejected

the concept of automatic liability (subject, of course, to

the defenses provided elsewhere in the Convention) for all

accidents within the limits of the aerodrome. Our conclusion

that under certain circumstances there may be liability

for some accidents within a terminal building is not inconsis-

tent with that intent. Furthermore, by analyzing this case,

as we have, in light of the carrier’s control over the passen-

gers and the likelihood of injury by causes inherent in air

transportation, we have accommodated the concerns of

those who opposed the CITEJA draft without doing vio-

lence to the language of Article 17.% Cf. Shawcross & Beau-

mont, Air Law, at 441-42 (3d ed. 1966); Matte, Traite de

Droit Aerien Aeronautique, at 404-05 (1964); Sullivan,

supra. or

Accordingly, the June 26, 1975, judgment of the district

court will be reversed and the case remanded for further

proceedings consistent with this opinion.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

12 The debates indicate that the principal fear was that carriers

would be liable for injuries sustained by passengers at times when

the airline had no control over what the passengers were doing.

As Prof. Georges Ripert of France stated:

‘‘There is real difficulty only for travellers, and this difficulty

arises from the fact that the traveller has his independence

....’ Minutes at 73.

Virtually all delegates agreed that there should be liability while

the passengers were on board the aircraft—a period when the car-

rier had complete control over both the passengers and their

environment.

A a ahaha Cama By

Seitz, Chief Judge, dissenting.

The majority holds that the defendant airline is strictly

liable under Article 17 of the Warsaw Convention for the

injuries which plaintiffs sustained within an airport term-

inal while waiting to board their flight, since those injuries

occurred ‘‘in the course of ... the operations of embark-

ing.’’ I believe the majority’s interpretation of Article 17

is unsupported by the relevant history of the treaty and

with the exception of the Second Circuit’s recent decision

in Day v. Trans World Airlines, 528 ¥'.2d 31 (2d Cir. 1975),

petition for cert. filed, 44 U.S.L.W. 3546 (U.S. March 30,

1976), is contrary to the decisions of courts in several

signatory countries.

In an attempt to define the scope of the rather imprecise

language of Article 17, the majority rejects the ‘‘Jocation

test’? advanced by TWA and adopts instead an ‘‘activity

test’’ under which a passenger’s activities are regarded as

largely determinative of whether that passenger was en-

gaged in the operations of embarking. The majority reasons

that the ‘‘location test’’ could lead to inconsistent results

based solely on the fortuity of where the injured passenger

was stationed at the time of injury. | believe that both

location and activity must be examined in order to determine

whether a passenger’s injuries were sustained during em-

barkation.

The starting point of my analysis is the policy under-

lying the enactment of the Warsaw Convention. As orig-

inally adopted, the Convention was designed to shield the

infant airline industry from potentially crippling damage

awards for injuries caused by risks inherent in air trans-

portation. In order to accomplish this objective, the treaty

restricted an airline’s potential liability to approximately

$8,300, in exchange for a presumption that the airline was

liable if the accident took place on board the aircraft or

during embarkation.

Plaintiffs maintain that the signing of the Montreal

Agreement in 1966 marked the rejection of the Conven-

tion’s original goal and that the Convention, as modified

by the Montreal Agreement, is now intended to afford pro-

tection solely to the passenger. While it is true that the

Montreal Agreement increased the damage limitation to

$75,000 and established a system of liability without fault,’

the Agreement retained in toto the other provisions of the

Convention, including Article 17. Thus, while the potential

recovery of those previously covered by the Convention

was signi’:cantly increased, the class of passengers entitled

to the treaty’s protection and the types of accidents on

which liability could be based remained the same. I there-

fore believe that the Convention’s original policy of lim-

iting an airline’s liability for personal injuries caused by

the unique perils of air navigation retains its vitality, not-

withstanding the adoption of the Montreal Agreement.

While I am not unmindful of the strong interest in provid-

ing injured passengers with an adequate recovery, where

their injuries are otherwise within the coverage of the

Convention, I believe this goal has been accomplished

through the increase of damage limitations and the elim-

ination of the airline’s ‘‘due care’’ defense.

1It is significant to note that the United States was initially

opposed to the principle of absolute liability since it viewed the

fault requirement as a necessary protection for the growth of the

airline industry. The subsequent retreat from this position oc-

curred when the $100,000 liability limit which the United States

advocated was rejected by the other signatories to the treaty.

Following the defeat of this proposal, the effective denunciation of

the treaty by the United States appeared imminent. The inclusion

of a system of liability without fault which was designed to reduce

litigation and to provide quicker settlements was therefore sug-

gested as a compromise measure in order to ensure United States

acceptance of the lower liability limits. Lowenfeld & Mendelsohn,

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

497 (1967).

De eR toms ee

The historical concern of the Convention drafters and

delegates was with the unusual and grave risks which were

then inherent in air travel. With this principle in mind,

it is apparent that a passenger’s location has a significant

impact on the risks to which he is exposed. The farther a

passenger is removed from the immediate vicinity of the

airplane itself, the less likely it is that he will be injured

by any of the unique perils which accompany air travel.

Certain dangers, such as the danger of skyjacking, are

encountered once the passenger has boarded the aircraft.

Obviously, the threat of skyjacking is not a substantial risk

borne by passengers within the terminal, Hence, while sky-

jacking has been loosely labeled as a risk associated with

air travel, Husserl v. Swiss Air Transport Co., 351 F.

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

1973), it is evident that such activity creates a risk only to

those so situated as to be exposed to the danger.

Like skyjacking, sabotage or terrorist activity may pose

a threat to passengers boarding or on board an aircraft.

To this extent, I agree that terrorism is a risk which ac-

companies international air travel. I am unable to agree,

however, that this particular hazard is an incidental risk

of air travel when it occurs within the confines of an air-

port terminal. Rather, in my view, a terrorist attack inside

an airport is no more likely than the bombing of a restau-

rant, bank or other public place. Accordingly, I believe

the majority’s conclusion that plaintiffs were injured as

a result of a risk inherent in modern air travel is unwar-

ranted, The particular hazards of terrorism which are

unique to air navigation are simply not risks to which

passengers in plaintiffs’ proximity were exposed.

The importance of a passenger’s location as it relates

to the risks of air travel is underscored by the case law

of this country as well as that of other signatories to the

treaty.? In the French case of Maché v. Air France, Rev.

Fr. Droit Arien 343 (Cour dAppel de Rouen 1967), aff’d

Rey. Fr. Droit Arien 311 (Cour de Cassation 1970), the

highest court in France determined that the Warsaw Con-

vention only governs accidents arising on the ground at

locations of the airport where passengers are exposed to

aviation risks. In that case a disembarking passenger was

led by 2 flight attendants across the traffic apron toward

the terminal building. Due to construction work, a detour

was taken through a customs area which was not on the

traffic apron. The passenger accidently stepped in a man-

hole and was injured. In finding that the Warsaw Con-

vention was inapplicable and did not restrict the passen-

ger’s potential recovery, the court ruled that the customs

area in which plaintiff was injured was not an area exposed

to risks of air navigation. Significantly, the court found that

the only ground area where such risks were incurred was

the traffic apron. -

A ease decided by the United States Court of Appeals

for the First Cireuit, MacDonald v. Air Canada, 439 F.2d

1402 (ist Cir. 1971), also stresses the importance of a

passenger’s location in relation to the hazards of air

travel. That case involved a 74 year old woman who myster-

iously fell while awaiting her suiteases in the baggage

area of an airport. The court affirmed a directed verdict in

the defendant airline’s favor on the ground that there was

2 As the majority correctly notes, there is a substantial interest

in uniformity of decision in this area. Block v. Compagnie Nationale

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

905 (1968). T do not, believe, however, that the interest in uniform

international interpretation of the treaty, adverted to in Block,

compels us to follow the Second Cireuit’s decision in Day v. Trans

World Airlines, supra, since that decision is inconsistent with prior

decisions of United States courts and, more importantly, with a

decision of the highest court in France. If deference is due in

order to achieve international uniformity, I believe we should

respect the French interpretation of a treaty which was written

and negotiated in the French language.

Rtas te meee.

no basis for finding an ‘‘accident’’, the first requirement

for invocation of the Convention. In any event, however,

the court found that the injuries sustained by plaintiff did

not occur during the operation of disembarking since that

operation had ‘‘terminated by the time the passenger [had]

descended from the plane by the use of whatever mechanical

means [were] supplicd and | had] reached a safe point in-

side of the terminal ... *’ 439 F.2d at 1045. The court

reasoned that the Warsaw Convention was not intended to

apply ‘‘to accidents which are far removed from the oper-

ation of aircraft.’’ Id. at 1405.

A determination as to whether a passenger’s injuries

were sustained in an area exposed to the particular risks

of air navigation is thus a necessary first step in deciding

whether that passenger was injured during the course of the

operations of embarking. Since I believe this threshold de-

termination must be resolved against plaintiffs in this case,

1 would affirm the judgment of the district court. However,

even assuming plaintiffs were injured at a location where

the perils of air travel are logically encountered, I do not

believe they were injured while in the course of the opera-

tions of embarking as required by Article 17. Rather, my

reading of the Convention Minutes and the subsequent

commentary on the treaty indicates that the delegates viewed

the operations of embarking restrictively to include only

the actual boarding of the airplane or, at best, the trip

across the traffic apron from the terminal building to the

plane. Under no circumstances were accidents inside the

airport terminal regarded as within the scope of the treaty.

As the majority correctly observes, the present language

of Article 17 resulted from the delegates’ rejection of Arti-

ele 20 of the CITEJA draft which would have imposed

liability from the time of entry of the ‘‘aerodrome of

deparature’’ until the time of exit from the ‘‘aerodrome

of arrival.’’? During the debates on Article 20, several

amendments were proposed to distinguish between the lia-

bility for carriage of passengers and that for transporta-

tion of goods. A representative example is the proposal by

the delegate from Brazil which suggested that the language

of Article 20 be amended:

‘*to replace ‘from the moment when travelers, goods

and baggage enter the aerodrome of departure up to

the moment when they leave the aerodrome of destina-

tion’ by ‘from the moment when the travelers have

boarded and the goods or baggage have been delivered

to the forwarder’.”’

Minutes at 71.

The French Delegation would have amended Article 20

to limit the airlines liability for injuries to travelers to

those injuries sustained during the course of carriage. Dur-

ing the discussions which followed the various proposals,

it became evident that there was considerable dissatisfac-

tion among the delegates with the expansive provision for

passenger liability embodied in Article 20 and a widespread

feeling that the Article should be re-submitted to the Draft-

ing Committee for revision.

Believing that important questions of substance rather

than mere matters of re-wording were raised by the several

proposed amendments, the delegate from Great Britain

suggested that the Convention pass on the substantive

issues before referring Article 20 to the Drafting Committee.

He remarked as follows:

‘‘Tt seems to me that here there are questions of

principal upon which one can pass before the referral

to the drafting committee.

‘‘For example, as regards travelers, does liability

begin, as it is said in the draft, upon the entrance

into the aerodrome of departure, or does it begin when

the traveler is on board the aircraft? Here is the di-

vergence as it exists as regards the travelers: When

re a cl we

Pare =

must liability begin? Following the principal estab-

lished in the draft of the Convention, or simply when

the traveler is on board?

‘It’s a question upon which | ask that one pass

before the referral to the drafting committee.”’

Minutes at 80-81.

These sentiments were echoed by the Reporter for the pre-

liminary draft who stated:

‘*We should make a decision first of all on the car-

riage of travelers and then on the carriage of goods.

The situation, in effect, can be different.

‘‘In the carriage of travelers, there is a double

solution possible: either maintaining the text which

would consist in engaging the liability of the carrier

as soon as the passenger enters the aerodrome, or

accepting the suggestion which was made which con-

sists in saying that the liability of the carrier is en-

gaged as soon as the traveler has embarked on the

aircraft.

‘*] point out again that this last solution, practically,

is not one at all, and facilitates nothing at all, because

the judge will always have to specify the moment when

the liability of the carrier begins. In effect, the pas-

senger can have steped [sic] on the step-up of the

aircraft, the step-up which is not an actual part of the

aircraft, and be injured by another aircraft.

‘‘Be that as it may, the proposal is very ciear.”’

Minutes at 81.

The substantive question was then called to a vote.

So that there could be no doubt as to the precise ques-

tion on which the delegates were voting, the delegate

from Luxembourg emphasized that

‘‘before deciding to refer to the drafting committee, it

is indispensable to vote in the sense of the proposals

made by the British delegation, which discriminated

very well between the various cases. When the confer-

ence will have made a decision on these points which

will be submitted to a vote, then the drafting committee

will be able to work in a useful manner.’’

Minutes at 82.

The Brazilian Delegation likewise reiterated:

‘*. . . I draw the attention of the Assembly to that

upon which we are going to vote. It’s a question of say-

ing, whether the liability of the carrier begins as soon

as the traveler enters into the aerodrome, which is a

public place, or when he embarks on the aircraft.’’

Minutes at 82.

Thereafter, a vote was taken and the proposed draft of

Article 20 was defeated. Following revision, the current

Article 17 emerged from the Drafting Committee and was

adopted.

The majority concludes that the debates indicate confu-

sion among the delegates as to the meaning of the rejection

of the CITEJA draft. | am unable to subscribe to this posi-

tion in view of the overwhelming evidence to the contrary.

The objections which were voiced to CITEJA draft of

Article 20 and the several amendments which were proposed

during the debates all reflect a common desire on the part

of those opposed to the draft Article to restrict a carrier’s

liability for personal injuries to injuries which occurred on

board or while the passenger was embarking. Agreement

with respect to this limitation among the delegates who

were critical of the CITEJA draft was almost universal.

Naturally, certain questions were raised as to whether this

alternative proposal would cover injuries sustained ‘‘in the

case of the aircraft which is still in the hanger, which is on

the traffic apron, which is taxiing ete. .. .’’ Minutes at 77.

Questions were also posed as to whether the proposal would

cover a passenger injured on the stairway which leads to

the interior of the aircraft. Minutes at 78, 81. None of the

factual variations or hypothetical possibilities which were

raised, however, even remotely suggested that the restric-

tive proposal might be construed to cover passengers within

the terminal. To the contrary, it was in reaction to the

imposition of liability under such circumstances that the

proposal was conceived.

I therefore believe that in rejecting the CITEJA draft

of Article 20, the delegates intended to signify their ap-

proval of a proposal which would limit an airline’s liability

for personal injuries to those injuries which occurred dur-

ing flight or while the passenger was boarding. Their sub-

sequent adoption of Article 17 must be viewed as an affirm-

ance of this more restrictive concept of liability. It appears

likely that the phrase ‘‘during the course of any of the op-

erations of embarking’’ was inserted in order to make

explicit that the Article covered the passenger who was on

the stairway preparing to enter the airplane in addition to

passengers who had already boarded.

lf ‘any confusion existed as to the scope of the terms ‘‘em-

barking’’ and ‘‘disembarking’’, it was limited to the ques-

tion of whether the Convention embraced accidents which

occurred while the passenger was physically proceeding

from the terminal to the plane or whether it covered only

mishaps during the actual physical process of boarding. At

the Fifth International Congress on Air Navigation — held

only 1 year after the Warsaw Convention was drafted — a

leading expert on air travel, Mr. D, Goedhuis, presented a

paper in which he summarized the prevailing interpreta-

tions of Article 17 as follows:

‘‘Further, art. 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.’’ D. Goedhuis, Obser-

vations Concerning Chapter 3 of the Convention of

Warschau 1929, Cinquieme Congres Internationale de

la Navigation Aerienne, 1-6 Septembre 1931 (The

Hague 1931) at 1163-64.

While Mr. Goedhuis advocated amending Article 17 to

reflect the broad interpretation of ‘‘embarking’’, he was

opposed by others, including at least one delegate to the

Warsaw conference itself, who argued that the narrow

interpretation which confined liability to accidents occuring

during the actual process of boarding, was ihe proper one.

It is significant to note, however, that under either inter-

pretation, the injuries suffered by plaintiffs in the instant

case would be outside the scope of Article 17. I therefore

conclude that plaintiffs were not injured in the ¢ourse of

‘‘embarking”’ as that term was restrictively intended.

My conclusion is not altered by the modern theories of

accident cost allocation on which the Second Circuit relies

in part in Day v. Trans World Airlines, supra. The Second

Cireuit finds that a broad construction of Article 17 is

appropriate since the airline is in the best position to dis-

tribute accident costs among all passengers and to assume

preventative measures. While I do not question the sound-

ness of these principles in appropriate contexts, I believe

that the explicit goals and policies which were voiced by the

delegates to the Warsaw Convention and reaffirmed by the

signing of the Montreal Agreement in 1966 foreclose ref-

erence to them in defining the scope of Article 17. Had the

signatories to the Convention wished to amend it in order

to reflect modern development in American tort law, they

could have affirmatively acted in 1966 when the monetary

damage limitation was increased and the airline’s due care

he ng OS th Dc

ee ee es

defense was eliminated. Their failure to do so should not

be disregarded, particularly if we keep in mind that this is

an international agreement.

Having concluded that plaintiffs were injured at a loca-

tion which was neither exposed to the hazards of air travel

nor within the delegates’ intended scope of coverage, I

would ordinarily end my analysis. However, in view of

the majority’s emphasis on the activity in which plaintiffs

were engaged at the time of injury, | feel compelled to

state briefly my views as to the relevance of this factor and

to address the majority’s argument. 7

An examination of an individual’s activity is only neces-

sary, I believe, once it has been determined that the individ-

ual was situated in the immediate vicinity of an airplane

where the risks of air travel are logically encountered.

Obviously, the physical activity of walking toward a plane

on the traffic apron or ascending the stairway to the plane’s

interior is no diffrent than the activity in which a passen-

ger engages at numerous locations within an airport. The

distinguishing feature, therefore, must be the location at

which this activity is performed.

Location, while important in identifying the potential

class of passengers entitled to recover, is nevertheless not

conclusive as to whether an individual passenger was in-

jured while engaged in the operation of embarking. Rather,

the injured victim’s conduct must also be scrutinized in

order to determine whether, objectively viewed, his activi-

ties were within the scope of Article 17. Clearly, an individ-

ual who is injured at a dangerous location while on a lark

of his own cannot be said to be ‘‘embarking’’ and should

not be permitted to recover under the Convention. Only

those passengers who have departed from the safety of the

terminal and are engagd in the activity of boarding or any

of the steps which immediately precede boarding should

be yranted recovery.

Although conceding that plaintitf’s had not completed the

preliminary steps necessary to boarding their flight in that

they had not been searched and had not departed from the

search area to board the bus which would take them to

their awaiting flight, the majority nevertheless concludes

that by standing in line waiting to be searched, plaintiffs

were engaged in the activity of embarking. It bases this

conclusion on a finding that TWA had assumed control over

the passengers and on its belief that terrorist attacks with-

in an airport are inherent risks of modern air travel.

As previously noted, I do not adhere to the majority’s

view that terrorism within an airport is a unique peril of

air navigation. Moreover, I question the relevance of this

factor if, as the majority suggests, an analysis of the ac-

tivity in which a passenger is engaged at the time of injury

is to be largely controlling.

With respect to its assertion that TWA had assumed

control over its passengers, the majority proves too much.

It cannot be gainsaid that passengers who are actuaily

boarding and even those who are proceeding from the

terminal to the plane on the traffic apron are subject to the

airline’s authority. Control is therefore inherent under the

more restrictive interpretation of Article 17 which I have

proposed.

It is equally clear, however, that passengers at many

locations within the terminal are also, to a large extent,

under the control of the airline. The majority’s control

analysis is therefore, at best, imprecise. In apparent recog-

nition of the over-inclusiveness of its contro! classification,

the majority seeks to impose yet another restriction on the

class of persons who are entitled to recover under Article

17, namely, membership in an identifiable group associated

with a particular flight and located within a specific geo-

graphical area designated by the airline. In effect, however,

this additional restriction elevates location — a factor

me en Oe DO EER

which the majority only nominally aceepts — to a position

of critical importance. Control becomes a mere artifice

to permit recovery within the terminal, yet under limited

circumstances.

I therefore conclude that the factors relied upon by the

majority in support of its conclusion that plaintiffs were

engaged in the activity of embarking are largely irrelevant.

Since I believe that plaintiffs’ location within the airport

terminal precludes their recovery under Article 17, I would

affirm the judgment of the district court.

United States Court of Appeals

For the Third Circuit

CONSTANTINE EVANGELINOS, CALLIOPPI

EVANGELINOS, ERMA EVANGELINOS, STELLA

KVANGELINOS and MARY JULIA EVANGELINOS,

APPELLANTS

TRANS WORLD AIRLINES, INCORPORATED

(D.C. Civil No. 74-165)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Present: Serrz, Chief Judge and Vax Dusen and Weis,

Circuit Judges

JUDGMENT

' This cause came on to be heard on the record from the

United States District Court for the Western District of

Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, filed June 26, 1975, be, and the same is here-

by reversed and the cause remanded for further proceed-

ings consistent with the opinion of this Court. Costs taxed

against appellee.

ATTEST :

(s) (Ilegible), Clerk

May 4, 1976

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.