56 A.D.2d 813 | N.Y. App. Div. | 1977
Order, Supreme Court, New York County, entered April 29, 1974, denying defendant’s motion for summary judgment, and granting plaintiffs’ cross motion for summary judgment to the extent of finding defendant absolutely liable to plaintiffs under the Warsaw Convention, is unanimously affirmed, with $60 costs and disbursements to respondents. The issue is whether a terrorist attack (during which three plaintiffs were injured and one plaintiffs intestate was killed) took place "in the course of any of the operations of embarking or disembarking” within the meaning of article 17 of the Warsaw Convention (as modified by the Montreal Agreement), an international treaty to which the United States is a party, and which applies to international air travel. Under the treaty there is absolute liability if the "accident” occurred in such "course.” The terrorist attack took place in the Athens Airport on August 5, 1973. The plaintiffs, including plaintiff’s intestate, had tickets for a flight from Athens to New York on defendant’s airline on that day. They had completed substantially all formalities; they had submitted their tickets, received boarding passes, checked their baggage, and passed through Greek passport inspection, after which they were admitted to the international transit lounge to await the calling of their flight and the search by Greek authorities prior to boarding the plane. Neither the lounge nor any specific area thereof is reserved for the exclusive use of any particular airline. When the flight was called, the passengers lined up in front of Gate 4, as directed to participate in a carry-on baggage and physical search by Greek authorities, upon the completion of which, the passengers were to pass through a gate and board a bus on the landing field to take them to the airplane. While the passengers were so lined up, two Palestinian terrorists, who were not prospective TWA passengers, threw hand grenades and shot persons waiting inside the international passenger lounge causing the injuries and death upon which this lawsuit is based. Persons other than prospective passengers on defendant TWA’s airline were also injured and killed. On these undisputed facts, Trial Term held that the
