Constantine Evangelinos v. Trans World Airlines, Incorporated

owner, apply he should relief not to this court.

Congress et

Constantine EVANGELINOS

al., Appellants,

v. AIRLINES,

TRANS WORLD

INCORPORATED.

No. 75-1990. Appeals,

United Court of States

Third Circuit.

Argued Feb. 1976. Before the Court En Banc

Reheard

Nov.

Decided Feb.

153 OPINION OF THE COURT DUSEN, VAN Judgе. Circuit August 5,1973, On Lounge the Transit Athens, the Hellinkon Airport Greece, was the scene of a vicious terrorist attack of TWA’s New York Flight bound 881. principal question presented by this interlocutory appeal1 con- cerns the of Trans World Airlines under the terms of the Convention, 3000, seq. (1934), 49 et Stat. modified Agreement the Montreal 1966, 31 Fed. (1966).2 Reg. 7302 The district court con- cluded that terms of the Convention applicable were plaintiffs not at the time of the terrorist attack and accordingly granted TWA’s partial motion for summary Tucker, Very, Arensberg L. & Donald judgment, dismissing the claim under the Pa., appellants. Ferguson, Pittsburgh, for Warsaw Convention.3 Evangelinos v. L. and E. Magulick Way- Michael Robert Airlines, Trans (W.D. World 396 F.Supp. 95 Irvin, man, Wayman, McAuley, Trushel & Pa.1975). We and reverse remand. Pa., appellee; Pittsburgh, John N. Ro- The facts of the attack on which this mans, Jr., Pennoyer, P. G. Charles K. litigation is based have been exhaustively Jr., Stothers, Hilton H. O’Neill and Chadb- summarized elsewhere4 and need Parke, Wolff, ourne, Whiteside & New repeated here. It is enough to briefly state City, of counsel. York that, time attack, at the already completed all the steps neces- sary boarding

Argued except (1) the aircraft Feb. 1976. physical undergoing searches,5 handbag SEITZ, Judge, Before Chief VAN (2) physically proceeding from the WEIS, Judges. Circuit DUSEN area to the search aircraft some 250 meters away. Immediately Flight after 881 was Reargued En Bane Nov. 1976. announced over the Transit Lounge loud- SEITZ, Judge, Chief VAN speaker, Before the passengers were instructed to ALDISERT, ADAMS, GIBBONS, DUSEN, Departure form two lines front of Gate ROSENN, HUNTER, GARTH, And, WEIS and 4. while all but a handful of Judges. gers standing Circuit in those awaiting lines 26, 1975, By complaint alleged 1. amended order dated June 3. The both absolute appeal pursuant Convention, modified, court district certified the Warsaw (232-33a). July 21, 1292(b) negligence. 28 U.S.C. On § granted petition plaintiff-appellants’ appeal. permission to Jurisdiction is based Evangelinos Airlines, Inc., v. Trans World su 96-98, and 1332. Plaintiffs pra on 28 U.S.C. 1331 §§ v. Trans World incorporated denied, of Ohio. Defendant (2d citizens cert. 429 528 890, U.S. F.2d principal (1976). of Delaware and has its the State S.Ct. 50 L.Ed.2d place of business in New York. required These searches and conducted treaty officially 2. Both the enti- prerequi- the Greek Government and were being permitted tled “A Convention for Unification of Cer- airport by to leave sites Relating Transpor- plane. guards tain Rules To International had two TWA stationed inside Air,” Agreement and Montreal building immediately beyond tation the terminal (1970). reprinted procedure § at 49 U.S.C. note area. search place terrorists fired took on board the procedure,6 two aircraft search the course of or in weapons fire in of automatic bursts embarking disembarking.” queues (Em- of the TWA direction general added.) phasis exploded grenades, hand hurled passengers. vicinity of dispute does not district court’s that a terrorist conclusion attack on airline the Warsaw Conven- terms of Under the an is “accident” within the modified, absolutely liable tion, TWA is meaning of Article 17. Thus the central $75,000. if an per passenger a limit of up to whether place is the attack took question passenger injury or causes incident any “in the course of 17 ambit of Article within the ‍‌​​​​​​‌​​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌​‌‌​​‌​​‌​​​‌​‌‌​​‌‍falls death ” embarking. . . . provides: 17 Convention.7 damage significantly be liable for Our task has been facil carrier shall “The by event of the death or recent itated Second Circuit’s deci Day v. Trans World any or other wounding passenger of a sion 528 denied, cert. 1975), a if 429 (2d suffered U.S. bodily injury F.2d 31 Cir. 246, 50 L.Ed.2d 172 damage 890, (1976), caused the so 97 S.Ct. the accident that: great court stated majority 6. The district eighty- ferred to. The Lounge] Flight to Transit [the “. . . entrance for nine scheduled 881 passengers ticketed and sched- to restricted in front the tables at in line Gate 4 at flights depart international to on uled the time of the incident. The Plaintiffs were injured operating out of the termi- . . . carriers being queued up while in line in front pas- personnel, who and to other nal waiting to be 4 while searched.” Gate sengers, area. . . . needed to service the F.Supp. (footnotes Pages 396 97-98 of omit- separate [4], two there are At lines, . . . Gate ted). females, for for males and one one originally drafted, physi- handbag 7. As conceived and a search and a Con there is bargain pas the Greek Police. There cal search made are tables and behind booths for tending effected a in which vention airline luggage of hand monetary for examination sengers traded a limitation on dam were located two the tables $8,300. equivalent per ages passen —the persons physical of all in- search ger pre the establishment of a rebuttable —for search, passen- depart. After the sumption of the carrier through proceed gers double doors out would falling for “accidents” within the ambit of the Lounge where boarded of the Transit Convention, Chap. Convention. III. transportation sta- to the aircraft buses for tioned at some distance bargain, American dissatisfaction with this es from Gate 4. damages, pecially ultimately the limits led to Security Guards were “. . Two TWA . Agreement, voluntary agree Montreal a least 4 as well as at two stationed Gate passenger governing ment between air carriers interna personnel of TWA. After service transportation that involved a tional United searched, being physically Agreement, location. Pursuant to the States to two sets of exit would have walked doors participating airline filed with the each Civil Lounge from the Transit to a which led Board contract under which the Aeronautics to the terminal build- attached raised terrace ing. $75,000. damages limit raised to and the of stairs were located on the Two sets leading waiting agreed of the terrace to a carriers not to assert east side area where ed to distance of where the various . . provided there was a bus intend- defenses in Article affirmative 20 of carry apron persons across the traffic The effect was the Convention. contractual approximately 250 meters regime new creation of a of absolute parked loading. airplanes were arising damages falling incidents with attack, eighty-nine all “At the time of For excellent in the Convention. discussions of Flight scheduled board TWA background of the Warsaw Convention and board- in and received their 881 had checked ing Agreement, Compag thе Montreal see Block v. completed passes. The Plaintiffs had France, (5th 386 F.2d 323 nie Nationale steps required began queue up various in two lines through denied, 905, 2053, 88 cert. U.S. S.Ct. proceeding preparatory to (1968); Lowenfeld Mendel 20 L.Ed.2d & physical baggage and hand sohn, United States and the Warsaw Con searches. vention, Note, (1967); 80 Harv.L.Rev. War Flight “Approximately seven Liability Carrier For Pas saw Convention—Air departed through gers Gate exited Terminal, senger Injuries Sustained Within A Lounge, and had either boarded Transit (issue 1976). previously of November to board the bus re- 45 Ford.L.Rev. 369 were about because a test arising out of same incid relies ease location identical alone both too Leppo arbitrary also v. Trans World Air specific See too ent.8 Inc., application, broad (N.Y.Sup.Ct. No. 21770- to have since ev lines, Misc. almost Term, every ery Part Decision of Mar. situation is different. 1973, Trial view, case, In our three factors are County). primarily In the N.Y. to a question relevant determination Kaufman, Judge thorough in a Chief liability under Article 17: location of the carefully analyzed scholarly opinion, accident, the activity in which the Con history of the Warsaw purposes person engaged, control vention, Emphasizing the as modified. injured person of such defendant at the experience under American location the activity taking gov of air carriers expectation current place the time the accident alleged modified, by erned Convention of any the course be “in of the operations of militating in considerations favor embarking,”8a may be relevant to the deci case, Day liability in the court unani this 17, under sion significantly and bear that the activities of the mously concluded the upon tests of activity and location. fell airport at the Athens oper purview phrase the of the “the within In so recognizing, place we less agree embarking.” of We with the ations upon weight carrier control over although Day, reached in our reason result Day than did the court. While re control that is a slightly, and note there ing differs at equally mains least important as as loca uniformity interest in of deci substantial activity, integral is an in factor v. Gompagnie in this area. Cf. Block sion evaluating both activity. location and A France, 323, (5th 386 337 F.2d Nationale primarily based standard these three 905, denied, 392 U.S. cert. Cir. seems best to factors calculated effect the 2053, (1968). 20 L.Ed.2d 1363 S.Ct. underlying policies Article 17. devise urged TWA has us to an easi Giving the “in phrase the course of of liability at rule as to when ly predictable operations embarking” of the a common is agree construction, We this desirable. taches. we agree with plaintiffs’ sеnse enticing approach as such an However contention that must examine the na- be, to activity we cannot accede the notion in might plaintiffs of the ture were at a particular a line can be drawn to determine if activity can of such the exit door an air termi be fairly part considered “the point, is embarking.” Nothing which leads airfield. This in the nal Convention noting Supreme may addition adhered to in future be to Court’s cases a matter of Day case, doubt”). in the counsel of certiorari some denial us the Memorandum of the have furnished case, States, in as amicus curiae example, United 8a. For the fact that the airline exer- Supreme with General filed Solicitor at cised strict control the time of 1976, September concluding checking baggage in Court near the entrance to the “petition de building for a writ of certiorari should be airрort might be irrelevant to That includes a detailed nied.” Memorandum the location and factors such analysis relinquished only of the relevant sections control reassumed Evangelinos entry consideration going the line after into formed for Airlines, May Opinion through leading walkway Inc. gate v. Trans World 75-1990, Cir.), (No. panel 3d deci transportation passenger bus to the aircraft. possibly of this which underlies the instant sion court relevant Another factor whether the Canada, banc, rehearing v. Air in MacDonald is a hazard of air cause accident travel as 1971) (stating pages (1st accident, at 12-13 that it exists at the time since the Day appears with consistent MacDonald Warsaw Convention concerned with such case), May opinion panel use of air hazards. extensive travel France, Fr. Rev. Dr. transportation v. Air Aér. 311 people Maché international has made that, 1970) (concluding (Cour major to de Cassation common in and terroristic attacks near terminals, though they with case is inconsistent extent the Maché even take also Note, appears supra Day, place “the view to be nature at other locations. See note (IV C). extent to which it will 382-87 at [and] dictum embarking” “operations of and caused them congregate the term in an defines area period defines directly solely and formation or otherwise related to aircraft door. Never- entering the Flight prior embarkation 881. This conclusion theless, substantially the same reasons supported by the fact that TWA service v. Trans World expressed personnel were standing at Gate guiding 33-34, we believe it is F.2d supra, 528 and TWA passengers, security person all the and circum- under facts appropriate present. were nel Under these circum preboarding to view the this casе stances, stances it is reasonable to conclude that “operations of em- searches begun TWA had to perform obligation its barking.” under carrier carriage as air contract of TWA, by and that announcing flight that, undisputed reveal facts taking control as a attack, had time group, had responsibility assumed for the virtually all the activities re completed protection. plaintiffs’ Thus, practi for all boarding, prerequisite as a quired purposes, cal “the operations embarking” departure gate standing line at the were begun. This supported conclusion is The plain to the aircraft. ready proceed a,Be Blumenfeld v. 1962 Z. Luft. R. 78 they sustained while injuries were tiffs’ (Berlin Appeals 1961), Court a case which explicit direction of acting at coverage would allow the facts TWA, performing and while here.9 present prerequisite as a required act final employed by TWA to take boarding busses Canada, Neither MacDonald v. Air family to the aircraft. Evangelinos the (1st 1971), F.2d 1402 Cir. nor the French opera significantly, at the time these More France, Air case of Maché v. Rev. Fr. Dr. commenced, Flight 881 had al tions had (Cour 1967), d’Appel Aér. 343 de Rouen aff’d. boarding. for final As a ready been called (Cour Rev. Fr. Dr. Aér. 311 de Cassation result, longer no passengers were TWA 1970)(reprinted in translation as Exhibit B to mingling over a broad area with brief), is inconsistent with the con- appellee’s Instead, acting pursuant other airlines. operations embarking” that “the clusion instructions, congregated in a they were at the time had commenced of the accident in designated by geographical area specific First, this case. both cases involved disem- group were identifiable as a asso TWA barking, where the nature and extent of Flight 881. ciated with carrier’s control over the the forming type plaintiff the in which By announcing flight, directing significantly as a differed group and Further, departure gate, near the case at bar.10 group to stand both the MacDonald group had assumed control over and Maché courts considered the Conven- Blumenfeld, plaintiff fell and broke her conclusion which we reach here. In MacDo- nald, leading plaintiff leg from the and ankle on the stairs while she was waiting baggage baggage waiting departing passengers for her claim room for Airport. Appeals, apron. area of Boston International Berlin Court of in She was traffic under the control of interpreting in no sense the airline or stated that “the air car- acting group flight passengers as a of a charge direct airline rier takes of the when Aviv, supervision. F.Supp. go waiting In Re Tel requests room them from the he nom., 1975), (D.P.R., aff’d sub Already Hernandez et al. at that time the air to the aircraft. France, (1st Air 545 F.2d No. 76-1146 carry v. begins transportation out the carrier contract, 1976), arising a disembarkation in Cir. case accessory obligation the essential MacDonald, ap- same Circuit nevertheless providing safety for the consists Day-Evangelinos parently subscribes every securing respect (location, activity test, tripartite control) (Translation begun.” agreed traffic which (in plaintiff Hernandez) but held that the even by parties.) for all counsel affirming could not recover. Tn under that test court, France, the district ‍‌​​​​​​‌​​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌​‌‌​​‌​​‌​​​‌​‌‌​​‌‍the First Circuit endorsed Air The recent case of Hernandez v. test, applied tripartite saying: (1st 76-1146 545 F.2d No. holding in clear that the First Circuit’s earlier deci- “We do not view our MacDonald makes necessarily foreclosing adoption is not in conflict with the sion in MacDonald phrase goal developing rules to “while on original board the aircraft” tion’s thought to be inher phrase risks then “in the course govern concluded, carriage operations embarking on that .” in air indi- ent that the apply not cates draftsmen basis, the Convention did of Article 17 made go a conscious choice beyond “safe” plaintiffs had reached a mere because Further, test. adoption location such risks. MacDonald distant from points, location test 1405; strict advanced TWA could Canada, Maché v. Air supra at v. differing lead to results Sullivan, resting solely France, also Codi supra. See fortuity are placed Liability by Interna Air Carrier fication of injury. at the time In the absence of 7 Journal of Air Law tional language plain compelling such a conclu- danger of violence— (1936). Since sion, reject we it. terrorism, hijacking the form of whether in today closely so associated sabotage —is Recognizing nothing on the facе of tripartite test transportation, with air supports Article 17 argument, its TWA di- here is more realistic in determin adopt we our attention to treaty rects making place” removed from air trans ing a “safe history of that Article. The pertinent his- Here, test, applying risks. portation of debates tory consists that centered conclude around Article of the draft Convention place,” “safe removed from in a located prepared by a small experts, committee of transportation.10a in air now inherent risks Internationale Technique Comité d’Experts be to any other result would To reach (CITEJA), Juridique Aeriens for considera- in its 1929 the Warsaw Convention freeze tion at Warsaw. Article 20 of the CITEJA infancy, mold, air travel was in its when provided part: draft procedures air travel ignore current period carriage, “The for the applica- special type risks crеated and the provisions tion of the present chap- tragedy. resulted in this violence [Liability of the ter shall extend Carrier] from the moment when the travelers principal TWA’s are we convinced Nor the aerodrome depar- . enter that “the of embark- argument ture, up to the moment when leave physical occur within the ing” can never of the aerodrome destination . . .” building of an air terminal confines is, therefore, the Warsaw Convention Article 20 up When the draft came must, with inapplicable. Starting, as we consideration, provoked considerable de- 17, language in Article the actual used those who bate between endorsed the ex- by nothing are struck the fact that in Arti- period aerodrome-to-aerodrome of pansive suggests period cle 17 a limitation on the of espoused a liability and those who more based the location of the liability strictly Minutes, view. Second Interna- restrictive “operations embarking disembarking.” of on Private Aeronautical tional Conference Law, 4-12, 1929, Warsaw, contrary, the between the 67-84 To the contrast October injuries plaintiff’s test, Day -Evangélicos tripartite held that the in that case be-we by an “accident” within the plaintiffs activity were not caused meaning lieve that the nature of a 17. location, of Article injured, when its extent exercising the airline was control over which plaintiff Aviv, supra, which is cited in 10a. In Re Tel injury certainly at the time of are 10, dangers supra, that these indicates note determining considerations in relevant continuing. Terrorist attacks oc- terrorism applicability of article 17. On the facts of people concentrations cur where there case, however, application of these this and, publicity maximum there- order to securе fore, require plaintiffs criteria conclusion that airports, in international due are common right did not have the to recover under article large volume of international air to the travel. airport 17.” large international terminals of The Hernandez, supra, at 282. not exist either when the 1973 did plaintiff adopted, Also we in Maché was note or in Convention arguing against applicability States adhered to that of the Warsaw the United Con- when and that the court in MacDonald vention. Convention 1975)(here- The Legrez transí. most that can (R. & D. Horner said is that Minutes). Ultimately principle rejected draftsmen concept inafter of automat- put liability (subject, course, of aerodrome-to-aerodrome ic to the defens- Minutes at 82-83. vote and defeated. to a provided es elsewhere in the Convention) drafting a new article in problem for all accidents within the limits of the was then referred conformity with vote departing or arrival aerodromes. Our con- Article 17 in drafting to a committee and clusion that under certain circumstances present emerged. its form may be liability there for some accidents a terminal building within is not inconsist- rejection contends with that ent intent.13 that the draft demonstrates dele- CITEJA period intended to exclude from the gates Accordingly, 26, 1975, the June judgment the time of the district court will be reversed and the buildings. inside air terminal We gers are remanded for case further proceedings con- rejection of the CITE- disagree. While opinion. with this sistent indisputably reflected an intent to JA draft expansive period en- restrict the SEITZ, Judge, Chief dissenting with nothing visioned in the de- GIBBONS, ALDISERT whom Circuit indicates that the line finally bates and Judges, join. unalterably drawn the walls of airline The basic issue treaty here is one of inter- buildings.11 Surely if such an ex- pretation, provincial to which a approach is intended, plicit language line had been presumably inappropriate. 17 would now of Article reflect it. More- over, among the debates indicate confusion majority holds that the defendant delegates meaning themselves as to the strictly airline is liable under Article 17 of rejection of the CITEJA draft. Min- the Warsaw Convention for injuries are, therefore, espe- utes at 83-84.12 We within an cially reluctant to draw conclusions which waiting terminal while flight, to board their drafting are not reflected in the work of a since those occurred “in the course advantage committee that had the of con- of embarking.” sidering contemporaneously. the debates majority’s I believe the interpretation of case, have, analyzing light In the word “aerodrome” as we meant property location and as well as the carrier’s entire airfiеld on which there were control over the buildings passengers, op- likelihood used several injury transporta- cause inherent in air posed single, large, building air terminal tion, we have accommodated the concerns of major airports country characteristic in this opposed the who CITEJA draft those without today. language doing violence Article 17. Beaumont, Law, Cf. Shawcross & at 441-42 12. We do not find the debates as clear as the Matte, 1966); (3d ed. Traité de Droit Aerien Although delegates dissent indicates. the (1964); Sullivan, Aeronautique, at 404-05 su- “rejection agreed that Article led [Draft 20] pra. acceptance opposite principle,” to of the it is principal The debates indicate that the fear “opposite principle” unclear as to what injuries was that carriers would be liable for Day, supra, was. In the Second Circuit con- by passengers at times when the air- adopted cluded that the Convention had the passengers line had no control over what Georges Ripert views of Prof. of France —the doing. Georges Ripert-of As Prof. France of French “dean writers on civil law” —who stated: “proposed that the article be recast in terms travellers, difficulty only “There is real for enough allow broad to the courts to take into difficulty and this arises from the fact that account the facts of each case.” 528 F.2d at independence his the traveller has event, any 34-35. it is clear from the final Minutes at 73. 17,that language of Article the strict Brazilian Virtually delegates agreed all that there should proposal, delegate articulated from liability passengers be while the were onboard Britain, Great which would have limited the period the aircraft —a when the carrier has period to the time when complete control over both aircraft,” adoptеd. were “on board the was not their environment. erage unsupported by Convention, the relevant 17 is I believe goal this treaty contrary and is history accomplished has been through the increase signatory countries. damage of several views limitations and the elimination of the airline’s “due care” defense. my analysis is the starting point of enactment of the underlying the policy The historical concern of the Convention originally adopt- As Convention. delegates drafters with the un- designed to shield ed, the Convention grave risks usual and which were then in- industry potentially infant airline herent in air travel. With this principle in injuries damage awards crippling mind, apparent it is that a passenger’s loca- transporta- in air inherent by risks caused significant impact has a on the risks to accomplish objective, In order tion. exposed. he is The farther passen- which a potentiаl an airline’s restricted treaty is removed from the ger immediate vicinity $8,300, in ex- approximately liability to itself, airplane likely less it is the airline presumption change for injured be that he will unique place accident took liable if the perils accompany air travel. embarkation. the aircraft board dangers, Certain such as the danger of signing Plaintiffs maintain skyjacking, pas- encountered once the Agreement in 1966 marked Montreal senger has boarded the Obviously, aircraft. original of the Convention’s rejection the threat of skyjacking is not a substantial Convention, as modified and that the goal by passengers risk borne within the termi- Agreement, is now intend- Montreal by the Hence, nal. while skyjacking has been protection solely to afford ed loosely labeled as a risk associated with air it is true that the Montreal While ger. travel, Co., Husserl v. Swiss Air Transport damage increasеd the limitation Agreement F.Supp. (S.D.N.Y.1972),aff’d, lia- $75,000 system and established a (2d F.2d it is evident that fault,1 Agreement re- bility without such creates a risk only to those provisions other in toto the tained exposed situated as to be to the danger. Thus, Article 17. including skyjacking, Like sabotage or terrorist ac- recovery previ- potential of those while tivity may pose a threat signif- by the Convention was ously covered boarding or on board an aircraft. To this increased, icantly class of extent, agree I terrorism is a risk treaty’s protection entitled accompanies international air travel. accidents on which could types of agree, however, I am unable that this I remained the same. therefore based particular hazard is an incidental risk air original policy that the Convention’s believe travel when it occurs within the confines of limiting personal an airline’s airport Rather, view, terminal. my injuries unique perils caused of air attack inside an terrorist is no more vitality, retains its notwith- navigation bombing than the likely restaurant, of a of the Montreal standing adoption public place. or other Accordingly, I am not of bank I Agreement. While unmindful majority’s conclusion strong providing injured pas- plain- interest in believe as a result sengers adequate recovery, with an tiffs of a risk air otherwise within the cov- in modern travel is inherent unwarrant- significant appeared It is to note that the United States United States imminent. The inclu- initially opposed principle to the of abso- was system liability sion of a without fault which require- since it viewed the fault lute designed litigation pro- to reduce was necessary protection growth for the as a ment quicker suggest- vide settlements was therefore industry. subsequent The retreat of the airline compromise as a measure in order to еd ensure $100,000 position occurred when the from this acceptance United States the lower which the United States advocat- limit Mendelsohn, The United Lowenfeld & limits. rejected by signatories the other to the ed was States and the Warsaw 80 Harv.L. Following proposal, treaty. the defeat of this (1967). Rev. 497 treaty by denunciation of the the effective of terrorism for invocation of particular The hazards ed. Convention. In any event, however, unique navigation to air are sim- court found that the plain- injuries to which sustained by plaintiff not risks ply did not occur during exposed. operation were proximity tiffs’ of disembarking since operation “terminated the time passenger’s a location importance of passenger descended from the [had] the risks of air travel is it relates to as plane by the use of whatever mechanical country the case law of this underscоred supplied means reached a [were] [had] signatories of other well as that point safe inside of the terminal . .” case of Maché v. Air In the French treaty.2 439 F.2d at 1405. The court reasoned that France, (Cour Droit Aerien 343 Rev. Fr. the Warsaw Convention was not intended 1967), Rouen aff’d Rev. Fr. Droit d’Appel de apply “to accidents which are far re- (Cour 1970), de Cassation Arien operation moved from the of aircraft.” Id. court in France determined that the highest only governs accidents Convention arising ground at locations of the A determination as to whether a passen- exposed ger’s were sustained in an area In that case a disembarking exposed particular aviation risks. risks of air navi- 2by flight gation was led attendants passenger necessary thus a step first in de- apron the traffic toward the ciding across terminal whether that injured work, building. Due to construction a de- the course of the embarking. Since through tour was taken a customs area I believe this threshold determination must apron. was not on the traffic against plaintiffs case, be resolved in this I passenger accidently stepped in a man-hole ‍‌​​​​​​‌​​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌​‌‌​​‌​​‌​​​‌​‌‌​​‌‍affirm the judgment would of the district injured. finding However, that the War- even assuming plaintiffs court. inapplicable injured Convention was and did saw were at a location perils where the passenger’s potential restrict the recov- logically encountered, air travel are I do that the ery, injured the court ruled customs area not believe while in the plaintiff in which was not an the operations course of embarking exposed navigation. to risks of air required by Rather, area Article 17. my reading Significantly, only the court found that the Convention Minutes and the subse- where such ground quent commentary area risks incurred on the treaty indicates apron. the delegates was the traffic viewed the operations of embarking restrictively only to include by the United A case decided States boarding or, best, actual airplane Circuit, Mac- Appeals for the First Court trip across the apron traffic from the Canada, (1st v. Air 439 F.2d 1402 Donald building terminal to the plane. Under no 1971), importance also stresses the Cir. circumstances were accidents inside the air- in relation to the haz- passenger’s location port regarded scope as within the That case involved a 74 ards of air travel. treaty. fell while year mysteriously old woman who awaiting baggage observes, suitcase in the area majority her As the correctly airport. The court present language of an affirmed direct- of Article 17 resulted delegates’ rejection ed verdict in the defendant airline’s favor from the of Article 20 ground there was no bаsis for of the CITEJA draft which would have “accident”, finding requirement imposed liability the first entry the time of notes, Block, majority correctly treaty, compels 2. As the tion of the there is a adverted to uniformity substantial interest of decision in the Second us to follow Circuit’s decision in Compagnie (2d this area. Block v. Nationale v. Trans World 528 F.2d 31 France, (5th 1967), denied, 97 S.Ct. 386 F.2d 323 Cir. cert. de 429 U.S. cert. nied, (1976), petition 392 U.S. 88 S.Ct. 20 L.Ed.2d L.Ed.2d 172 for rehear believe, however, (1968). pending ing I do not since decision is inconsistent highest interpreta- the interest in uniform international court with a decision France. begin? bility Following principle the time departure” until es- of “aerodrome in the draft of the the “aerodrome of arrival.” tablished from exit simply several or when the traveler is on on Article board? the debates During distinguish proposed amendments question “It’s a which I ask that carriage liability for between pass one before referral to the draft- goods. transportation for and that gers ing committee.” example proposal by is the representative A Minutes at 80-81. suggested Brazil which delegate from by sentiments were echoes These the Re- of Article 20 be amend- language preliminary for the draft who porter stated: ed: make a “We should decision first of all when trav- ‘from the moment replace “to carriage on the travelers and than on baggage enter the aero- elers, goods and carriage goods. The situation, up to the moment departure drome effect, can be different. the aerodrome desti- they leave when carriage travelers, “In the there is a moment when the ‘from the by nation’ possible: solution either double maintain- goods or boarded and have travelers the text which would ing consist in en- for- delivered to the baggage have been gaging carrier as soon warder’.” aerodrome, passenger as the enters the at 71. Minutes suggestion accepting the which was made would have amend- Delegation French in saying consists the liability airlines’ 20 to limit the ed the carrier is as soon as the injuries to those to travelers has embarked on traveler the aircraft. carriage. during the course of again point “I out that this last solu- which followed the the discussions During tion, all, is practically, not one at proposals, it became evident various nothing all, facilitates because the considerable dissatisfaction there judge always specify will have to delegates expansive with the among the when the moment the carrier liability embodied provision effect, begins. passenger can have widespread feeling 20 and in Article steped step-up aircraft, [sic] re-submitted to the Article should be step-up which is actual Drafting Committee for revisiоn. aircraft, and be another important questions of Believing that aircraft. rather than mere matters of re- substance may, “Be that as it proposal very pro- were raised the several wording clear.” amendments, from delegate posed Minutes at 81. suggested Britain that the Conven- Great question The substantive was then called to pass on the substantive issues before a vote. referring Drafting Article 20 to the Com- He remarked as follows: mittee. that there could be no doubt as to the So that here there are precise question delegates “It seems me on which the principle upon voting, delegate which one can questions Luxem- drafting the referral pass bourg emphasized before committee. deciding drafting “before to refer committee, travelers, indispensable it example, regards

“For as to vote in liability begin, proposals made does is said the sense draft, delegation, which upon the entrance into the aero- discriminated British the various departure, begin very or does it well between cases. drome will have traveler is on board the air- the conference made a when the When divergence points as it exists on these which will be Here is the decision craft? vote, drafting to a then the travelers: When must lia- submitted regards the 162 will be to work in

committee able a use- circumstances that the proposal was con- ful manner.” ceived.

Minutes at 82. I therefore believe that in rejecting the CITEJA draft of Article Delegation likewise reiterat- the delegates The Brazilian signify intended to approval pro- ed: of a posal which would limit an airline’s liability “. . I draw attention of the personal injuries to those which Assembly go- to that which we are during flight occurred or while the passen- question ing saying, to vote. It’s ger boarding. Their subsequent begins carrier whether adoption of Article must be viewed as traveler enters 17. as soon as the into the affirmance this more aerodrome, restrictive public place, concept which is a liability. appears It likely he when embarks aircraft.” phrase “during the any course of Minutes at operations of embarking” was inserted in Thereafter, a taken pro- vote was and the order to explicit make that the Article cov- posed draft of Article 20 was defeated. passenger ered the who was on the stairway revision, Following the current Article 17 preparing to enter the airplane in addition emerged Drafting from the Committee and to passengers who had already boarded. adopted. If confusion existed to the scope majority The concludes the debates “embarking” terms and “disembark- among delegates indicate confusion ing”, it was limited to the question of meaning rejection the CI- whether the Convention embraced accidents I am unable to TEJA draft. subscribe to which occurred while the passenger was in view of the position overwhelming physically proceeding from the terminal to contrary. objections evidence plane or whether it only covered mis- which were voiced to the CITEJA draft of haps during the physical actual process of 20 and the several amendments boarding. At the Fifth International Con- were proposed during which the debates all gress Navigation on Air only year ‍‌​​​​​​‌​​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌​‌‌​​‌​​‌​​​‌​‌‌​​‌‍—held reflect a common desire on of those after the Warsaw Convention was draft- opposed to the draft Article to restrict a leading expert travel, ed—a on air Mr. D. carrier’s personal injuries Goedhuis, presented paper in which he injuries which occurred on board or while summarizеd the prevailing interpretations passenger embarking. Agreement of Article 17 as follows: respect with to this among limitation “Further, art. ‘embarque- mentions delegates who were critical of the CITEJA ‘debarquement’. ment’ and question was almost draft universal. Naturally, cer- to explain how these words? questions were There are tain raised as to whether a) two views viz: in a broad sense: proposal this alternative i. e. would inju- cover embarking begins when ries sustained “in the case of the aircraft ger leaves the station-building which is still in the on hanger, way his which is on the aeroplane, apron, standing in taxiing traffic which is the flying- etc. .” field; Questions disembarking Minutes at 77. ends when the posed also passenger, destination, as to arrived at proposal whether the would cover a enters station-building; b) on stairway a narrow sense, leads to the interior i. e.: the getting aircraft. Min- board and the alightment only utes at comprise None of the factual get- varia- the actual ting tions or hypothetical possibilities and out of the aeroplane.” D. raised, however, Goedhuis, even remotely sug- Observations Concerning Chap- gested the restrictive proposal might ter Convention of Warschau be construed to cover Cinquiéme within the Congrés International de To contrary, terminal. Adrienne, was in reac- la Navigation Septembre 1-6 imposition tion to the of liability under such (The Hague 1931) at 1163-64. amending Having advocated concluded were in- Mr. Goedhuis While interpreta- the broad to reflect jured at a location which neither ex- was Article by- was opposed he “embarking”, of air posed tion hazards of travel nor within delegate to least one others, including at delegates’ scope coverage, I the intended of itself, argued who conference Warsaw thе ordinarily my would end How- analysis. con- which interpretation narrow the that ever, majority’s in view the emphasis on occurring to accidents liability fined activity plaintiffs the in which en- were boarding, was the process actual the injury, at the time of gaged I feel com- note, how- significant to It is one. proper briefly my to state views as to the pelled the interpretation, either ever, that and this factor to address the relevance in the instant by plaintiffs suffered argument. majority’s the of Article scope be would outside case an An examination of individual’s activi- plaintiffs conclude that I therefore believe, only necessary, I once it has ty is course injured in the of “embark- not were the been determined individual restrictively intend- as that term ing” in the immediate vicinity of an situated ed. risks of airplane where the air travel are is not altered the mod- conclusion My logicаlly Obviously, phys- encountered. of accident cost allocation legal theories ern activity walking plane ical toward a on part in Circuit relies in the Second which on apron or ascending stairway the traffic supra. Trans World v. plane’s interior is no different than that a construc- finds broad Circuit Second activity which a passenger engages in appropriate since the Article 17 is airport. numerous locations within an position to distribute is in best airline feature, distinguishing therefore, must among all and costs accident the location at which this activity I do measures. While preventative assume performed. princi- of these the soundness question not contexts, appropriate I believe in ples Location, important identifying while in goals policies explicit potential class entitled to delegates to the Con- by the voiced recover, not is nevertheless conclusive as to signing reaffirmed vention an whether individual was in- in Agreement 1966 foreclose Montreal engaged in jured operation while defining scope to them reference Rather, embarking. injured victim’s signatories to the Con- 17. Had the Article must also be conduct scrutinized in order to order to to amend wished vention whether, viewed, objectively determine his developments in American modern reflect the scope were within activities law, affirmatively act- they could have tort Clearly, individual who monetary limi- damage 1966when the ined dangerous location while on a lark of his airline’s due was increased tation to be “embarking” cannot be said own eliminated. Their failure defense care permitted not be recover under should disregarded, particu- not be do so should Only those Convention. this is an in mind larly keep if departed safety from the have who agreement. international engaged activity majori- note worthy of that the It is also boarding steps which immedi- greatly expand the abso- approach will ty boarding ately precede granted should be while, at the air carriers lute recovery. time, litigation inviting drawn out same Although conceding plaintiffs not at- whether or such determine completed the neces- preliminary steps approach to The semi-automatic taches. boarding flight sary to sug- I determining absolute departed had not been searched had not with nearly to more accord would seem gest bus which from search area board the treaty of the drafters intent awaiting flight, take them to their sought accomplished. to be would objectives majority nevertheless concludes that searched, standing waiting in line to be Margaret Hanna M. Ayoub, AYOUB and wife, Appellants, his embarking. It bases this cоnclusion on a v. finding that has assumed control over SPENCER, D, Dr. H. N. M. Appellee. its belief that terror- within an ist attacks inherent No. 76-1408. air of modern travel.

risks United States Court of Appeals, to its respect assertion that TWA With Third Circuit. passengers, control over its had assumed Argued Dec. majority proves too much. It cannot be Decided Feb. gainsaid actually who are boarding those who proceed- and even are plane the terminal to the

ing from subject apron are

traffic airline’s

authority. is therefore Control inherent interpretation

under the more restrictive I proposed. 17 which have clear, however, equally that passen-

It many within the

gers locations terminal also, large extent, to a the control majority’s the airline. The anal- control therefore, best,

ysis imprecise. In

apparent recognition of the over-inclusive- classification, majori-

ness its control yet

ty impose seeks to another restriction persons

on the class of who are entitled to

recover under Article namely, member-

ship group identifiable with associated flight and particular ‍‌​​​​​​‌​​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌​‌‌​​‌​​‌​​​‌​‌‌​​‌‍located a within geographical designated area

specific by the effect, however,

airline. this additional position

restriction elevates to a location importance.

critical Control becomes permit artifice recovery

mere within the

terminal, yet under limited circumstances. Bea,

Blumenfeld v. 1962 Z. Luft. R. 78

(Berlin Appeals 1961), Court of relied on majority, suffers from the same infirmi-

ty-

I therefore conclude that the re- factors upon by

lied the majority support of its that plaintiffs

conclusion of embarking largely irrele- I plaintiffs’

vant. Since believe that loca- within precludes recovery under Article I would the judgment

affirm of the district court.

Case Details

Case Name: Constantine Evangelinos v. Trans World Airlines, Incorporated

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 4, 1977

Citation: 550 F.2d 152

Docket Number: 75-1990

Court Abbreviation: 3rd Cir.