# Petition — Maugnie v. Compagnie Nationale Air France

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 974

## Text

|, 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.”

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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).

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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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1559%3A1. Public record. Not legal advice.