Petition — Maugnie v. Compagnie Nationale Air France

|, supreme Gour, U.S |

“FILED %

.N THE | APR 19 1977

SUPREME COURT OF THE UNITED STATES

October Term n 1916"

No. 1445

SIMONE MAUGNIE,

Petitioner

COMPAGNIE NATIONALE AIR FRANCE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT S. GOLBERT, ESQ.

Counsel for Petitioner

1800 Century Park East

Los Angeles, CA 90067

(213) 277-0300

HERBERT COLDEN, ESQ,

of Counsel

10850 Wilshire Blvd.

Los Angeles, CA 90024

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1976

No.

SIMONE MAUGNIE,

Petitioner

COMPAGNIE NATIONALE AIR FRANCE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT S. GOLBERT, ESQ.

Counsel for Petitioner

1800 Century Park East

Los Angeles, CA 90067

(213) 277-0300

HERBERT COLDEN, ESQ,

of Counsel

10850 Wilshire Blvd.

Los Angeles, CA 90024

TOPICAL INDEX

Page

OPINIONS BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTES, FEDERAL RULES, AND

REGULATIONS INVOLVED 3

STATEMENT ai

REASONS FOR GRANTING THE WRIT 10

CONCLUSION 20

APPENDIX + OPINION OF THE NINTH

CIRCUIT COURT OF APPEALS

No. 74-2672, DATED

JANUARY 19, 1977

TABLE OF AUTHORITIES

Cases

Bingler v. Johnson

89 S.C. 1493;

349 U.S. 741 (1969)

Charles Dowd Box Co. v. Courtney

82 S.C. 519;

368 U.S. 514 (1962)

Day v. Trans World Airlines, Inc.

528 F.2d 31 (2d Circuit 1975)

cert. denied U.S.

(October 12, 1575)

Evangelinos v. Trans World

Airlines, Inc.

Civil No. 74-165 (3rd Circuit,

filed May 4, 1976); reversing

396 F.Supp. 95 (W.D.Pa. 1975)

F.T.C. v. Flotill Products, Inc.

88 S.C. 401;

389 U.S. 179 (1967)

In Re Rel Aviv

405 F.Supp. 154

(D.C.P.R., 1975)

MacDonald v. Air Canada

439 F.2d 1402

(lst Circuit, 1970)

ii.

‘

19

15

16

1l

16

13

7

Mache c. Air France (1968)

D.S. Jur. 515 (1967), Revue

Francaise de Droit Aerien 343

(Cour d'Appel, Rouen), aff'd

(1971) D.S. Jur. 373 (1970)

Revue Francaise de Droit Aerien

311 (Cass. Cir. lere)

Maugnie v. Air France

Civil No. 74-2672 (9th Circuit,

filed January 19, 1977;

Appendix Al - Al2)

N.L.R.B. v. Metropolitan Life

Insurance Co.

85 S.C. 1061;

380 U.S. 438 (1965)

United States v. Muniz

83 S.C. 1850;

374 U.S. 150 (1963)

Waterman Steamship Corp. v.

United States

85 S.C. 1389;

381 U.S. 252 (1965)

Constitution

Article III, Section 2

Article II, Section 2

Article VI, Clause 2

Statute

28 U.S.C. §1254 (1)

iii.

IN THE

Page .

, SUPREME COURT OF THE UNITED STATES

Treaties October Term 1976

Treaty for the Unification of #0.

Certain Rules Relating to Inter-

national Transportation by Air

concluded at Warsaw, October 12, SIMONE MAUGNIE,

1929; entry into force, October 29, Petitioner

1934; 49 Stat. 3000; TS 876 IV

Trenwith 5250 4 we

COMPAGNIE NATIONALE AIR FRANCE,

Respondent.

International Agreements

Agreement between the Civil

Aeronautics Board of the United

States and, inter alia, Campagnie

Nationale Air France; Approved pur-

suant to Section 412 Federal Aviation

Act, 1958, on May 13, 1966, Docket

No. 17325, Order No. E-23680, Vol.

31, No. 97, Federal Register 7302

(Thursday, May 19, 1966) 4, 5

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

r Petitioner prays that a writ of certi-

orari issue to review the judgment of the

United States Court of Appeals for the

Ninth Circuit entered in the above case

on January 19, 1977.

OPINIONS BELOW

The opinion of the District Court for

6 the Central District of California was

case number 73-1600-WMB-Civil. The

opinion of the Court of Appeals for the

Ninth Circuit is numbered 74-2672.

iv. 1.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was made and

entered on January 19, 1977, and copies

thereof are appended to this petition in

the Appendix at pages 1-12. The juris-

diction of this Court is invoked under

28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

In a suit under the Convention for

the Unification of Certain Rules Relating

to International Transportation by Air

("Warsaw Convention") 49 Stat. 3000 (1934)

as amended by the Montreal Interim Accord

{approved by the Civil Aeronautics Board,

May 13, 1966, Order E-23680, 31 Fed. Reg.

7302 (1966)], Petitioner sought to estab-

lish a cause of action under Article 17

of the Warsaw Convention for injuries

suffered in the air terminal at Paris,

Orly Sud.

The District Court properly concluded

that actions under the Warsaw Convention

can only be maintained for injuries suf-

fered "...on board the aircraft or in

the course of any of the overations of

2.

embarking or disembarking.” [Warsaw

Convention of 1929 Article 17]. The

District Court then concluded that "“dis-

embarkation operations are terminated

once a 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.” ([Cit-

ing MacDonald v. Air Canada 439 F.2d 1402,

1405 (CCA lst, 1971)]. The Court of

Appeals affirmed. The questions pre-

sented are:

1. Whether petitioner's injury falls

within the ambit of Article 17.

2. Whether the term “in the course

of...disembarking" comprehends accidents

which result in injury to passengers in-

side an airline terminal.

3. Whether distinguishing "embark-

ing” passengers from "disembarking"

passengers for purposes of application

of Article 17 is a meaningful distinction.

STATUTES, FEDERAL, AND

REGULATIONS INVOLVED

The pertinent portion of the Warsaw

Be

Convention, Article 17, provides as

follows:

"(Article 17] The carrier shall be

liable for damage sustained in the event

of the death or wounding of a passenger

or any other bodily injury suffered by a

passenger, if the accident which caused

the damage so sustained took place on

board the aircraft or in the course of

any of the operations of embarking or

disembarking.”

STATEMENT

The action arises under the Constitu-

tion of the United States, Article III,

Section 2, Article II, Section 2 and

Article VI, Clause 2; the Treaty of the

United States with, inter alia, the

Republic of France for the Unification of

Certain Rules Relating to International

Transportation by Air concluded at Warsaw,

October 12, 1929 entering into force for

the United States of America, October 29,

1934; 49 Stat. 3000; TS 876; IV Trenwith

5250; the Agreement between the Civil

Aeronautics Board of the United States

with, inter alia, Compagnie Nationale Air

4.

France, approved pursuant to Section 412

of the Federal Aviation Act of 1958, as

Amended, and filed with other governments

as required and approved by said Board

pursuant to said Section 412 on May 13,

1966, Docket No. 17325, Order No. E-23680,

Vol. 31, No. 97, Federal Register 7302

(Thursday, May 19, 1966); and as herein-

after more fully appears. The matter in

controversy exceeds, exclusive of inter-

est and costs, the sum of $10,000.00.

This suit under the Warsaw Convention

arises from injuries suffered by peti-

tioner as a result of an accident which

occurred while petitioner was disembark-

ing from respondent's flight 004 in the

south wing of Orly Airport at Paris,

France, on Sunday, September 12, 1971.

Petitioner fell upon her back and suf-

fered severe bodily injury including a

combined lumbo sacral sprain and an “L-1"

compression fracture of her back. The

basic facts, which are not in dispute,

are as follows:

On September 3, 1971 petitioner con-

tracted with Air France, an international

air carrier party to the Montreal Interim

3.

Accord, for a flight from Los Angeles,

California to Paris, France where she

was to transfer to Swiss Air for a

flight to Geneva, Switzerland. Upon her

arrival in Paris, petitioner was directed

by the Air France ground crew to exit

from the Air France plane into the air

terminal and to proceed down the only

passenger corridor leading from the

Air France gate to the main terminal

area. In this corridor, approximately

half way between the airline gate and

the common area of the terminal, peti-

tioner slipped on the highly polished

floor and fell, incurring the injuries

apove noted which gave rise to the com-

plaint. The parties stipulated that

the trial of this action be bifurcated,

and that the issue of the liability of

respondent be tried by the court. The

parties also stipulated to the basic

facts and the District Court made its

findings of fact substantially in the

form as stipulated. The District Court

then made, inter alia, the following

conclusions of law:

1. Actions under the Warsaw Conven-

tion can only be maintained for injuries

suffered "on board the aircraft or in

the course of any of the operations of

embarking or disembarking." Warsaw Con-

vention of 1929, Article 17.

2. Disembarkation operations are

terminated once a “passenger has

descended from the plane by use of what-

ever mechanical means have been supplied

and has reached a safe point inside the

terminal." MacDonald v. Air Canada 439

F.2d 1402, 1405, (CCA lst 1971).

On appeal, the Court of Appeals

affirmed. The majority of the court

eschewed the purely mechanical applica-

tion of Article 17, as established by

the MacDonald court, which would empha-

size simply the location of the passen-

ger (CCA Opinion page 9), preferring

instead "...an approach which requires

an assessment of the total circumstances

surrounding a passenger's injuries,

viewed against the background of the in-

tended meaning of Article 17..." (ibid)

It nevertheless concluded that peti-

tioner's "claim does not come within the

7.

scope of the Convention. [Petitioner's] disembarking; that because the embarking

situation contrasts sharply with the passengers were determined in Day and

status of passenger's in Day [Day v. Evangelinos to be under the control of

Trans World Airlines, Inc., 528 F.2d 31 the airline and because in the instant

(1971)] and Evangelinos [Evangelinos v. case petitioner “was acting at her own

Trans World Airlines, Inc., Civil Number direction and was no longer under the

74-165, Third Circuit Court of Appeals ‘control’ of Air France...," petitioner,

filed May 4, 1976]. There the passengers unlike the plaintiffs in Day and

had obtained their boarding passes and Evangelinos, falls without the meaning

were standing in line at the departure of Article 17.

gate waiting to be searched immediately

before boarding. On those facts, it was

reasonable for the courts to conclude

that the travelers were involved in em-

barkation operations. [Petitioner], on

the other hand, had deplaned and was

headed for the Swiss Air gate to make her

connecting flight to Geneva at the time

of injury. ...Under these circumstances,

we find that appellant had completed dis-

embarkation operations within the meaning

of Article 17." (CCA Opinion pages 9 and

10). Essentially, then, the Court of

Appeals has distinguished petitioner's

case from the claimants in Day and “—

Evangelinos in that those passengers

were embarking and petitioner was

8. De

REASONS FOR GRANTING THE WRIT AS

A MATTER OF RIGHT

The decision below should be reviewed

because it erroneously interprets Article

17 of the Warsaw Convention so as to make

an artificial distinction between "em-

barking" and "disembarking" passengers.

Even the device used for such distinction,

"control," is without merit in that a

disembarking passenger is in no more con-

trol of his or her own destination, path

or options than an embarking passenger.

In the instant case, petitioner was

directed by the respondent's ground crew

down the “only passenger corridor leading

from the Air France gate to the main

terminal area." [CCA Opinion page 2],

There was no other path she could have

taken in order to proceed to her destina-

tion and, contrary to the conclusion of

the Court of Appeals [page 10 of its

Opinion which conflicts with its own

correct original statement of the facts],

she had not proceeded "into a common pas-

senger corridor of Orly Airport which was

neither owned nor leased by Air France."

As the record in the District Court will

10.

show, the wing of the airport into which

she was disembarking was in the exclusive

use of Air France; it would not have been

until she reached the main corridor,

which passed at a ninety degree angle to

the corridor down which she was proceed-

ing, that she would have entered "a com-

mon passenger corridor of Orly Airport."

Even then she would not be out of the

"control" of the airline. Air France had

control of her baggage and was in the

process of transferring it to Swiss Air.

Petitioner would not, in fact, have left

the responsibility of the respondent as

a transit passenger until completion of

the transition to the successive air

carrier. See Article 30, Warsaw Conven-

tion.

The case in fact falls squarely with-

in the "relatively broad construction of

Article 17" recommended by the Second

Circuit Court of Appeals in Day [528 F.2d

31, 34], because "...affording protection

to the plaintiffs under the Warsaw lia-

bility umbrella is in harmony with modern

theories of accident cost allocation.

The airlines are in a position to

ll.

distribute among all passengers what would

otherwise be a crushing burden upon those

few unfortunate enough to become ‘acci-

dent' victims....Equally important this

interpretation fosters the goal of acci-

dent prevention...-The airlines, in

marked contrast with individual passen-

gers, are in a better posture to persuade,

pressure or, if need be, compensate air-

port managers to adopt more stringent...

measures...-" While the Day court was

concerned with "security measures" against

"terrorist attacks," the rationale is

precisely applicable to safety measures

to protect passengers from unsafe condi-

tions within the air terminal, even when

those conditions are the responsibility

of the airport managers and not of the

airlines themselves because "...the com-

panies operate under circumstances more

conducive to investigating the conditions

at the airports they regularly serve than

do their passengers. Moreover, they can

better assess the probability of acci-

dents and balance the reductions in risk

to be gained by any given preventive

measure against its costs." (ibid.)

12.

While there are decisions such as

In re Tel Aviv (405 F. Supp. 154) which

also seek to exploit a distinction

between embarking and disembarking in

order to deny Warsaw Convention coverage

to an action, such cases often rely on

decisions which were themselves discred-

ited on appeal (In re Tel Aviv cited as

authority the District Court's opinion

in Evangelinos v. TWA, 396 F. Supp. 95,

which was reversed by the 3rd Circuit

Court of Appeals, case number 75-1990,

[May 4, 1976]), or are distinguishable

on their facts (the passengers in Tel

Aviv had passed Israeli passport control,

had retrieved their luggage and were in

the process of clearing through customs,

all of which acts were outside the "con-

trol" of the airline).

To permit the promulgation of such

an artificial distinction would be to

draw a rule that would permit recovery

to victims of air piracy only when they

were in the process of embarkation; if

they were in the act of disembarking at

the time they were gunned down or herded

into their air carrier's wing of the

13.

airport, they would be outside the ambit

of protection thought to be afforded by

the Convention.

In the instant case, the Court of

Appeals effectively advised petitioner

that she should have sought recovery in

France from the Orly Airport authorities,

even though this required the Court of

Appeals to pass lightly over the leading

French precedent for such cases, Mache

c. Air France (1968) D.S. Jur. 515 [1967]

Revue Francaise de Droit Aerien 343 (Cour

d'Appel, Roven), aff'd, [1971] D.S. Jur.

373 [1970] Revue Francaise de Droit

Aerien 311 (Cassation civ. lre), which

would have classified her cause of action

as one that fell within the coverage of

Article 17 of the Convention. Because

petitioner elected, as was her right

under the Convention (see Article 28) to

bring her action in the forum wherein her

contract of carriage was made, she finds

herself without rights because of con-

flicting interpretations of the scope of

Article 17 coverage between such forum

and the alternative forum recommended by

such forum. It is a classic case of

14.

"Catch 22" in which uniformity, predicta-

bility and justice are all losers.

Even if the distinction were warranted,

it would not be applicable to petitioner

in that she was either disembarking Air

France at the time of the occurrence or

embarking Swiss Air for her through

flight to Geneva. At no time did she veer

from the course set out by respondent's

officials for her to follow in order to

effect contact with her connecting flight

nor was she ever out of their control and

direction. There is, thus, no reason to

distinguish the facts of petitioner's

case from those examined by the Second

Circuit Court of Appeals in Evangelinos.

There is a clear conflict between the

Second and Third Circuits on the one hand

and the First [MacDonald] and Ninth Cir-

cuits on the other, It is thus appropri-

ate that certiorari be granted in order

to “resolve conflict and determine the

proper scope of..." Article 17 of the

Convention. [Bingler v. Johnson, 89 S.Ct.

1439, 1443, 394 U.S. 741, 748 [1969]].

There is a great abundance of auth-

ority where, "because of a conflict with

15.

the decisions of other Courts of Appeals

-.--[the Supreme Court] granted certiorari"

FTC v. Flotill Products, Inc., 88 S.Ct.

401, 403, 389 U.S. 179, 181 (1967);

Waterman Steamship Corp. v. United States,

85 S.Ct. 1389, 1393, 381 U.S. 252, 258

(1965); United States v. Muniz, 83 S.Ct.

1850, 1852, 374 U.S. 150, 151 [1963];

N.L.R.B. v. Metropolitan Life Insurance

Co., 85 S.Ct. 1061, 1063, 380 U.S. 438,

440 -1 [1965]; Charles Dowd Box Co. v.

Courtney, 82 S.Ct. 519, 526, 368 U.S.

502, 504 [1962].

The questions presented by this case

are of great recurring significance in

the interpretation of Article 17 of the

Warsaw Convention in particular and the

interpretation of the Convention in

general. The concurring opinion of Judge

Wallace in the decision of the Court of

Appeals correctly notes that the Warsaw

Convention is a two-edged sword: "The

basis of liability is strict but at the

same time the amount recoverable is

limited." (Court of Appeals decision

page 11). But what Judge Wallace fails

to note are the consequences deriving

16.

from an overly strict interpretation of

the Warsaw Convention. It is clearly

preferable in most cases that a plaintiff

have access to an United States forum with

a cause of action based upon strict lia-

bility within the limits imposed by the

Montreal Interim Accord, than to be set

adrift in a foreign tribunal and required

to plead and prove a cause of action for

negligence in an alien tongue at great

expense in time and money.

If the conflicting decisions herein

set forth are permitted to stand without

Clarification by this Court, the follow-

ing results could be predicted on their

authority:

1. Had Petitioner been in the pro-

cess of embarking, and had suf-

fered her accident and resultant

injury at the same location in

the Air France wing of Orly Air-

port, South, she would have been

permitted recovery.

2. If passengers disembarking from

one flight are interdicted by

terrorists and herded together

17.

with passengers about to embark

on another, and all thereafter

suffered injury at the hands of

their captors, only the embark-

ing passengers would be permitted

recovery under the Convention.

3. If a plane goes out of control

and crashes into an air terminal

injuring both passengers about

to embark and other passengers

in the same area of the terminal

in the process of disembarking

from other flights, only those in

the process of embarking would

fall within the protection of the

Convention.

A number of tests now loom ahead for

the courts as a result of the castastro-

phic collision between the KLM and Pan

American airliners on the island of

Tenerife, Canary Islands [Spain], and the

Entebbe hijacking. It is clear that the

Convention does not distinguish between

"embarking" and “disembarking” passengers

and it is error for the courts so to do.

Perhaps a MacDonald test which would

18.

reflect the facts cf that case and not

its obiter dictum would be appropriate.

Such a test would recognize a distinction

between one who has just entered the air-

line terminal and one who suffered her

injuries at the outer perimeters of a

domestic baggage claim area after her

baggage had been retrieved. If such a

test had been recognized and applied to

the instant case, petitioner would not

now be seeking this writ. Even with the

abortive MacDonald test cited with auth-

ority by the courts below, petitioner

should be found to be outside its scope

as her status as a passenger was not to

change until she reached Geneva where

disembarkation would be complete.

The serious questions of public

policy here involved and the effect of

the decision below, if unreversed, upon

the law being developed in the Second

and Third Circuits make this case a

peculiarly appropriate one for the exer-

cise of this Court's discretionary juris-

diction.

19.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this peti-

tion for a Writ of Certiorari should be

granted.

Respectfully submitted,

ALBERT S.GOLBERT

Attorney for Petitioner

HERBERT COLDEN

Of Counsel

20.

APPENDIX

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Simone Mavenrtr, i

Plaintiff-Appellant,

vs. = 74-2672

Compaaniz NATIONALE AiR FRANCE, OPINION

Defendant-Appellee. }

[January 19, 1977]

Appeal from the United States District Court

for the Central District of California

Before: DUNIWAY and WALLACE, Circuit Judges,

and RICHEY,® District Judge.

RICHEY, District Judge:

On this appeal we are required to interpret the meaning of

“disembarking” as used in Article 17 of the Convention for the

Unification of Certain Rules Relating to International Carriage

by Air (the “Warsaw Convention”),! which provides as follows:

Article 17. The carrier shall be liable for damage sustained

in the event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger, if the accident

which caused the damage so sustained took place on board

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

embarking and disembarking (emphasis added).

Appellant contends that the district court erred in holding that

her injury did not occur in the course of disembarking within

the meaning of Article 17. Unpersuaded by appellant’s argu-

ments, we affirm.

The facts are not in dispute. In 1971 appellant contracted

with Air France, an international air carrier, for flight from

*The Honorable Mary Anne Richey, United States District Judge for

the District of Arizona, sitting by designation.

149 Stat. 3000 et seq. (1934), reprinted at 49 U.S.C. § 1502 Note.

A-1

2 Simone Maugnie vs.

Los Angeles, California, to Paris, France, where she was to

transfer to Swiss Air for flight to Geneva, Switzerland. When

appellant reached Paris, she exited from the Air France plane

and entered the Orly Airport terminal to make her Swiss Air

connection. She proceeded down the only passenger corridor lead-

ing from the Air France gate to the main terminal area. In a

hallway between the airline gate and the center of the terminal,

appellant slipped and fell, incurring the injuries which gave rise

to the complaint. On reviewing the facts, the district court con-

cluded that “[s]ince at the time of her accident, plaintiff had

deplaned the Air France aircraft, had reached a safe point inside

Orly Airport, and had proceeded a substantial distance en route

to the Swiss Air departure area, the injuries complained of were

not suffered ‘on board the aircraft or in the course of any opera-

tions of . . . disembarking.’” C.R. 67. The court thereupon dis-

missed the complaint with prejudice, pursuant to stipulation of

counsel.

The parties are in agreement that the Warsaw Convention was

applicable to appellant’s flight from Los Angeles to Paris. The

sole dispute on this appeal is whether appellant’s injury is com-

prehended by Article 17. To arrive at a workable definition of

the term “in the course of . . . disembarking” as used in Article

17, we may properly look to the history and purpose of the

Convention and subsequent interpretations thereof. The scope of

the Warsaw Convention is a matter of federal law and federal

treaty interpretation, and must be determined from an examina-

tion of the “four corners of the treaty.” American Trust Co. v.

Smyth, 247 F.2d 149, 153 (9th Cir. 1957); Husserl v. Swiss Air

Transport Co., Lid., 388 F. Supp. 1238, 1249 (S.D.N.Y. 1975).

Moreover, it is well established that treaty interpretation involves

a consideration of legislative history and the intent of the con-

tracting parties. Choctaw Nation v. United States, 318 U.S. 423,

431-432 (1943); Day v. Trans World Airlines, Inc., 528 F.2d 31,

35-36 (2d Cir. 1975), cert. denied, .... U.S. ..... (Oct. 12, 1975) ;

Block v. Compagnie Nationale Air France, 386 F.2d 323, 336-338

(5th Cir. 1967); Rosman v. Trans World Airlines, Inc., 34 N.Y.

2d 385, 392, 358 N.Y.S.2d 97, 314 N.E.2d 848, 854 (1974)?

2Appellant argues that since jurisdiction in this action is based on

diversity of citizenship, the district court should have consulted con-

flicts rules in interpreting the scope of Article 17. It is true that the

‘

Compagnie Nationale Air France 3

The Convention was drafted in the late 20’s when the inter-

national air transportation industry was in its beginning stages.

In order to provide a favorable environment for the industry’s

growth, various sovereignties agreed to create a uniform body of

law governing the rights and responsibilities of passengers and

air carriers in international air transportation. See Lowenfeld

and Mendelsohn, The United States and the Warsaw Convention,

80 Harv. L. Rev. 497, 499-500 (1967); Block v. Compagnie

Nationale Air France, supra, at 326-351, and authorities cited

therein. The drafters of the treaty proposed to limit liability for

injuries caused by air accidents and, as an offset, proposed a

presumption of liability on the part of the air carrier. As origi-

nally drawn, the Convention established a presumption of liabil-

ity with a liability limitation of $8,300 per passenger for injuries

comprehended by Article 17. See Articles 20, 22 and 23.8

Warsaw Convention does not create a cause of action, but merely

creates a presumption of liability if the otherwise applicable substan-

tive law provides a claim for relief based on the injury alleged. Noel v.

Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957), cert. den.

355 U.S. 907 (1957); Komlos v. Compagnie Nationale Air France,

111 F. Supp. 393 (S.D.N.Y. 1952), rev’d om other grounds, 209 F.2d

436 (2d Cir. 1953); Husserl v. Swiss Air Transport Co., Ltd., 388

F. Supp. 1238 (8.D.N.Y. 1975). Thus, confiicts rules are applicable

in determining whether a cause of action exists. E.g., Husserl, supra.

However, the determination of the scope of the Warsaw Convention is

a matter of federal law and federal treaty interpretation. Conflicts

principles are not applicable in interpreting the words of the Conven-

tion; rather, the meaning of Article 17 should be ascertained from the

intention of the drafters and the goals of the Convention. Husserl,

supra; Block v. Compagnie Nationale Air France, 386 F.2d 232 (5th

Cir. 1967).

8Article 20 provides in pertinent part: “(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.”

Article 22 provides in pertinent part: “(1) In the transportation of

passengers the liability of the carrier for each passenger shall be

limited to the sum of 125,000 francs.”

Artiele 23 provides: “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.”

A-3

4 Simone Maugnie vs.

In 1965 the United States formally denounced the Warsaw

Convention because of the low limitation on damages.‘ Notice of

denunciation was withdrawn, however, on the signing of the

interim Montreal Agreement. The Agreement, approved by the

United States through its Civil Aeronautics Board," established

an increased liability limit of $75,000 per passenger for inter-

national air transport involving a location within the United

States. Additionally, the Agreement imposed absolute liability

on air carriers, thus eliminating the defense of due care set

forth in Article 20(1).¢

Today the Convention. functions to protect passengers from the

hazards of air travel and also spreads the accident cost of air

transportation among all passengers. Day v. Trans World Air-

lines, Inc., supra, 528 F.2d at 36, Taking a broad view of the

term “accident,” courts generally have extended air carrier lia-

bility to include injuries resulting from such modern air hazards

as hijacking and terrorist attacks. Evangelinos v. Trans World

Airlines, Inc., Civil No. 74-165 (3d Cir., filed May 4, 1976);

Day v. Trans World Airlines, Inc., supra; Husserl v. Swiss Air

Transport Co., Ltd., 351 F. Supp. 702 (S.D.N.Y. 1972), aff’d

485 F.2d 1240 (2d Cir. 1973); In re Tel Aviv, 405 F. Supp. 154

(D.P.R. 1975); Burnett v. Trans World Airlines, Inc., 368 F.

Supp. 1152 (D. N. Mex. 1973); but see Hernandez v. Air France,

No. 76-1146, Slip Op., 8-9 (1st Cir., filed Nov. 19, 1976). How-

ever, the courts have not been uniform in construing “in the

course of . . . embarking or disembarking” as used in Article 17,

due perhaps to the ambiguous history of the Convention and

the changes in air transportation technology since the original

drafting.

In construing “disembarking,” several courts have interpreted

Article 17 as defining Warsaw coverage primarily by location of

the passenger. In MacDonald v. Air Canada, 439 F.2d 1402 (1st

‘Dept. of State Press Release No. 268, Nov. 15, 1965.

SApproved by the Civil Aeronautics Board, May 13, 1966, Order

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

®The Montreal Agreement, not a treaty itself but an agreement

among the carriers, did not change the text of the Warsaw Convention.

Rather, it modified the terms of the Convention with respect to inter-

national transportation involving a location in the United States. See

generally Lowenfeld and Mendelsohn, The United States and the

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

A-4

Compagnie Nationale Air France 5

Cir. 1970), upon which the district court herein relied, injuries

sustained by a passenger while awaiting her suitcase in defend-

ant airline’s baggage area were held to be outside the scope of

the Convention. Relying on the ordinary meaning of the words

of the treaty, the First Circuit reasoned 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, even though he may remain in the status of a pas-

senger of the carrier while inside the building.” 439 F.2d at

1405.

Additionally, the court noted that the most important purpose

of the Convention was to protect air carriers from “the crushing

consequences of a catastrophic accident ... . Neither the eco-

nomic rationale for liability limits, nor the rationale for the shift

in the burden of proof, applies to accidents which are far

removed from the operation of the aircraft.” 439 F.2d at 1405.

The First Circuit reaffirmed the MacDonald decision in Her-

nandez v. Air France, supra, and at the same time indicated its

willingness to consider factors other than location of passenger

in interpreting Article 17. There the issue was whether Article

17 comprehended passenger injuries incurred in a terrorist attack

while passengers were waiting in the baggage retrieval area of

the air terminal, Applying the analysis utilized in Day and Evan-

gelinos, discussed infra, the court considered the location of the

passengers and, additionally, the nature of the passengers’ activ-

ity and whether the passengers were under the control of the

carrier at the time of injury. The court found that application

of those criteria required the conclusion that the Hernandez

plaintiffs should not recover under the Warsaw Convention.

While recognizing that the “tripartite test of Day-Evangelinos”

might be useful for close cases, the court preferred an inter-

pretation of Article 17 which placed at least initial emphasis on

physical location of the passengers. On reviewing the legislative

history of the Convention, the court was persuaded that the

Convention delegates intended “embarkation and disembarkation”

to mean “essentially the physical activity of entering or exiting

from an aircraft.” Slip Op., 7-8. Moreover, the court waa reluc-

tant to expand air carrier liability to cover all acts of in-terminal

terrorism, since the risk of such random violence was deemed

A-5

6 Simone Maugnie vs.

not a risk inherent in air travel. The court concluded that the

process of disembarking was completed by the time the passen-

gers had left the aircraft and its immediate vicinity, were inside

the terminal and were no longer acting at the direction of the

carrier.

In re Tcl Aviv, supra, also involved a terrorist attack on pas

sengers who had deplaned and were waiting in the baggage area

of the terminal building. Endorsing a test based primarily on

physical location of passengers, the district court held that the

Convention did not apply. In the court’s view, the legislative

history of the Convention made clear that the delegates to the

Convention intended to exclude from coverage accidents occurring

inside an airport terminal building. The court noted that the

Warsaw Convention delegates specifically rejected a proposal

from the Comité International Technique d’Experts Juridiques

Aériens (CITEJA) which would have made the carrier liable

from the time travelers, goods, or baggage first enter the airport

of departure to the moment when they leave the airport of desti-

nation. 405 F. Supp. at 157, citing from Minutes, Second Inter-

national Conference on Private Aeronautic Law, October 412,

1929, Warsaw (R. Horner and D. Legrez, transl. 1975) (herein-

after Minutes). The court concluded that the MacDonald test was

appropriate:

{[T)he intent of the Warsaw Conference in rejecting the

CITEJA draft and in declining to impose in Article 17 the

same extent of carrier liability for passengers as that pro-

vided by Article 18 for goods and baggage’ was clearly to

exclude liability as to passengers for accidents which occur

after the passenger “has reached a safe point inside the ter-

minal,” and “which are far removed from the operation of

the aircraft.” (Citation omitted.) 405 F. Supp. at 157.

7Article 18 provides broad coverage for goods and baggyge: “(1) The

carrier shall be liable for damage sustained in the event of the destruc-

tion or loss of, or of damage to, any checked baggage or any goods,

if the occurrence which caused the damage so sustained took place

during the transportation by air. (2) The transportation by air within

the meaning of the preceding paragraph shall comprise the period

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

whether in an airport or on board an aircraft, or, in the case of a

landing outside an airport, in any place whatsoever.”

Compagnie Nationale Air France 7

The court indicated that embarkation and disembarkation

might be distinguished for purposes of Article 17, since the em-

barking passenger must perform certain required acts within the

terminal as a condition of completing his journey. In contrast,

the disembarking passenger normally “has few activities, if any,

which the air carrier requires him to perform” once the pas-

senger has entered the terminal building. At 157 n.2, quoting

from Day v. Trans World Airlines, Inc., 393 F. Supp. 217, 223

(S.D.N.Y. 1975). Similarly, other courts have denied Warsaw

coverage to in-terminal accidents in the context of disembarka-

tion. Felismina v. Trans World Airlines, Inc., 13 Avi. Cas. 17,145

(S.D.N.Y. 1974) (injury on escalator leading to lower level of

terminal); Klein v. KLM Royal Dutch Airlines, 46 A.D.2d 679,

360 N.Y.S.2d 60 (2d Dept. 1974) (injury on baggage conveyor

belt inside terminal); cf. Mache v. Air France, Rev. Fr. Droit

Aérien 343 (Court d’Appel de Rouen 1967), afd Rev. Fr. Droit

Aérien 311 (Cour de Cassation 1970) (injury in customs area off

the traffic apron).

Athens, Greece. At the time of the attack, the passengers were

standing in line at the departure gate ready to proceed to the

aircraft. ee

In , the Second Circuit unanimously rejected a “rigid loca-

Packe.. rule” as incompatible with the primary goal of the

Warsaw drafters—‘“to create a system of liability rules that

would cover all the hazards of air travel.” 528 F.2d at 38.° In

the court’s view, the Montreal Agreement, with its imposition

of absolute liability and greatly increased liability limits, demon-

Second Cireuit viewed the delegates’ rejection of the proposal

one carrier liability explicitly cover in-terminal injuries as an indica-

tion of the delegates’ preference oa oo a on

that

A-7

8 Simone Maugnie vs.

strated that protection of the passenger was one of the present-

day functions of the Convention. Recognizing that air travel

hazards now include terrorism and hijacking and that such perils

often spill over into the airline terminal, the court found that

injuries resulting from a terrorist attack while passengers were

waiting to board were within the scope of Article 17 as modified

by the Montreal Agreement.

The court approved of the district court’s interpretation of

the intended meaning of Article 17. The district judge had

rejected the strict location-based formula urged by the airline

and had applied instead a tripartite test based on activity (what

the plaintiffs were doing), control (at whose direction), and loca-

tion. Day v. Trans World Airlines, Inc., 393 F. Supp. 217 (S.D.

N.Y. 1975).

Similarly, in Evangelinos, supra, the Third Circuit in a two

to-one decision, followed the Day analysis and rejected the air-

line’s argument that embarkation operations under Article 17

could never occur inside a terminal building. The court reasoned

that neither the language of Article 17 nor the delegates’ rejee-

tion of the CITEJA draft compelled a conclusion that the drafts-

men intended a strict location-based test.

The most that can be said is that the draftsmen rejected the

concept of automatic liability 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 inconsistent with that

intent. Slip Op., 9.

The court felt that it was accommodating the principal con-

cerns of those who opposed the CITEJA proposal® without going

Compagnie Nationale Air France 9

ond the plain meaning of Article 17 by taking into considera-

a “the ph near control over the passengers and the likelihood

of injury by causes inherent in air transportation.” Slip Op., 9.

See also Husserl v. Swiss Air Transportation Co., Ltd., supra,

388 F. Supp. at 1245-48, giving a flexible interpretation to the

phrase “on board the aircraft” as used in Article 17. :

On reviewing the authorities cited to us, we find that 4 rule

based solely on location of passengers is not in keeping with

modern air transportation technology and ignores the advent of

the mobile boarding corridors utilized by many modern air ter-

minals.’° Today the expandable boarding units have eliminated

to a great extent the need for embarkation and disembarkation

outside the termina! building. Thus, determining whether passen-

gers were inside or outside the airport terminal at the time of

injury should not end the analysis. Further, we note that some

commentators have concluded that “control” is the decisive factor.

Shaweross and Beaumont, Air Law 441-442 (3d Ed. 1966);

Matte, Traite de Droit Aerien-Aeronautique, 404-405 (1964)

(cited in Day, 528 F.2d at 37 n. 17.)

since the Convention drafters did not draw a clear

sin mg Court is also reluctant to formulate an inflexible rule.

Rather, we prefer an approach which requires an assessment of

the total circumstances surrounding a passenger’s injuries, viewed

against the background of the intended meaning of Article 17.

Location of the passenger is but one of several factors to be

considered.

However, even under the more flexible interpretation of the

language of Article 17, appellant’s claim does not come within

the scope of the Convention. Appellant's situation contrasts

sharply with the status of the passengers in Day and Evange-

linos. There the passengers had obtained their boarding passes

and were standing in line at the departure gate, waiting to be

10 i of the Convention, we may properly con-

ae en a subsequent to the drafting of the treaty.

See Block v. Compagnie Nationale Air France, 386 F.2d 323, 336-337

(5th Cir. 1967); Eck wv. United Arab Airlines, 15 N.Y.2d 53, 203

N.E.2d 640 (1964); ALI Restatement Second of Foreign Relations

Law §§ 147, 153.

10 Simone Maugnie vs.

searched immediately before boarding. On those facts, it was

reasonable for the courts to conclude that the travelers were

involved in embarkation operations. Appellant, on the other hand

had deplaned and was heading to the Swiss Air gate to make

her connecting flight to Geneva at the time of injury. She had

proceeded through a boarding lounge and into a common pas-

senger corridor of Orly Airport which was neither owned nor

leased by Air France. Furthermore, she was acting at her own

direction and was no longer under the “control” of Air France.

Under these cireumstances, we find that appellant had completed

disembarkation operations within the meaning of Article 17.

Judgment affirmed.

WALLACE, Circuit Judge, Concurring:

The majority recognizes that application of either th ion-

of-the- passenger test of MacDonald v. Air Canada, 439 Dan tam

(ist Cir. 1971), or the tripartite test of Day v. Trans World

Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 45 U.S

L.W. 3280 (U.S. Oct. 12, 1976) (No. 75-1354), results in the

same disposition: affirmance of the district court’s judgment and

denial of recovery to plaintiff Maugnie. It is therefore plainly

unnecessary in this case to resolve an important question con-

a ae We ought not to be reaching out

But if choose I must, I would choose the MacDonald

agree with the district judge that that test is more in Bn

with both a fair reading of the language of Article 17 and the

Article's historical derivation. See generally Note, Warsaw Con-

vention—Air Carrier Liability for Passenger Injuries Sustained

Within a Terminal, 45 Fordham L. Rev. 369, 370-76, 379-86

(1976). As the First Cireuit just recently noted in Hernandez v

Air France, No. 76-1146 1st Cir. Nov. 19, 1976), aff’g 405 F.

Supp. 154 (D.P.R. 1975):

We are persuaded that the delegates [to the Warsaw Con-

vention | understood embarkation and disembarkation as

pope the = activity of entering or exiting from

rather as a broader notion of initiating |

ending a trip. ss ™

A-10

Compagnie Nationale Air France Al

Slip op. at 7-8. Indeed, all

courts defining “disembarking” have consistently refused to

extend the coverage of the Warsaw Convention to encom-

pass injuries occurring within the terminal. The principle,

announced in MacDonald and followed by the courts in

Felismina |v. Trans World Airlines, Inc., 13 Av. Cas.

917,145 (S.D.N.Y. 1974)! and [In re] Tel Avi [405 PF.

Supp. 154 (D.P.R. 1975)], created a standard which empha-

sized the passenger's location, thereby ending liability when

the passenger has reached a “safe” point within the terminal.

Note, supra, 45 Fordham L. Rev. at 376.

The Day test, on the other hand, suffers from several serious

flaws. First, the conclusions reached by Day, and by Evange-

linos v. Trans World Airlines, Inc., No. 75-1990 (3d Cir. May 4,

1976), motion for rehearing en banc granted (June 3, 1976),

which follows Day, “rest upon a somewhat selective reading of

the Warsaw minutes.” Note, supra, 45 Fordham L. Rev. at 380.

In other words, the substantial portions of the legislative history

favoring the location test, see id. at 380-81, were disregarded.

Second, the Day test is bottomed on a social theory of com-

pensation designed to spread the burden of damages from travel

to all travelers. By relying on this theory of social engineering,

“the Day court clearly injected policy arguments alien to the

spirit of the Warsaw convention when drafted in 1929.” Id. at

385. However, it is not possible, in my view, to implement such

a theory under the current terms of the Warsaw Convention

without such a torturing of language as to constitute a redraft-

ing. The court in Day, unfortunately, engaged in such contor-

tions. If the signatories of the Convention wish to redraft it,

they may do so, but the courts should not.

Finally, it seems clear to me that the Day test was designed

to extend a right of recovery to persons for whom sympathy

inspires a method of compensation. The Day test was meant to

be plaintiffs’ law. Yet in many cases it may operate to thwart

plaintiffs’ attempts to recover the full value of their claims. The

Warsaw Convention is a two-edged sword: the basis of liability

is strict but at the same time the amount recoverable is limited.

See Mache v. Air France, [1968] D.S. Jur. 515 [1967] Revue

Francaise de Droit Aérien 343 (Cour d’Appel, Rouen), af’d,

A-11l

12 Simone Maugnie vs.

1971] D.S. Jur. i i

Sr (oa at Mere Frame de Dr Abin

the applicability of the Warsaw Convention in an effort to avoid

its ceiling on recovery. Thus, even if it is accepted on its own

terms, the Day test may have perverse and unintended conse-

Accordingly, I concur only in the result.

PERNAU-WALSH PRINTING 0O., GAN FRANCISCO 1-27 -77—410

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