# Petition — Hernandez v. Air France > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1257%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 950 ## 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 es 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: A. B. C, 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) 32 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, v. 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 2 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? 3 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 4 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 5 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. 6 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 7 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 8 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: 9 ‘* |. 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- 10 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. 11 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- 12 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 13 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). 14 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 15 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. 16 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- 17 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. 18 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. ... 19 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: 20 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. 21 APPENDIX B United States Court of Appeals For the First Circuit No. 76-1146 JUILO JOSE MARTINEZ HERNANDEZ, er at., PLAINTIFFS, APPELLANTS, v. 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. 22 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). 23 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. 24 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- 25 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. 26 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. 27 ‘‘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. 28 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. 29 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). 30 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. 31 ‘*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. ee 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.’’ 32 APPENDIX C United States Court of Appeals For the First Circuit No. 76-1146 JULIO JOSE MARTINEZ HERNANDEZ, ET AL., PLAINTIFFS, APPELLANTS, v. 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. } 33 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- 34 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. 35 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 36 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 37 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. 38 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. 39 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. 40 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. 41 (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. 42 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 43 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.”’ 4H ‘““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.’’ 45 “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 46 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. 47 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- 48 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.’’ sh 49 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- 50 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 oe 51 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). 52 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). ce a3 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. 54 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 55 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. 36 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 57 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 —— — 58 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 59 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. 60 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 61 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 62 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. 63 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 64 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 = 65 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 66 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- tio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1257%3A1. Public record. Not legal advice.