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This history clearly demonstrates that the delegates did not intend the presumption of article 17 to cover all accidents to passengers within air terminals; such broad coverage was proposed by CITEJA [Comite Internationale Technique d'Experts Juridique Aeriens] and was specifically rejected. . . . It seems clear that, in doing so, the conference deliberately eschewed a brightline test in favor of a more flexible formulation. Under that formulation, whether an activity constitutes "any of the operations of embarking" necessarily would be. . . "a question of fact which the courts will have to resolve."
It may well be that the delegates, or a majority of them, did not envision that "any of the operations of embarking" could take place within an air terminal. In using that phrase, undoubtedly they had in mind the boarding procedures that prevailed at the timeprocedures that apparently entailed little more than walking across the traffic apron and mounting a ladder. But boarding procedures have changed enormously since 1929, and the words chosen by the delegates must be applied to circumstances different from any they could have imagined.
Moreover, the delegates did not intend to freeze into the language of the Convention a test of liability reflecting the thenexisting techniques of embarkation. They did not, for example, specify that liability could attach only when the passenger emerged from the air terminal or mounted the boarding ladder, although they could easily have done so. Instead, they chose a formulation broad enough to encompass changing conditions and to allow the relevance of specific facts to be considered on a case-bycase basis.
Accordingly, it seems plain that the arbitrary rule urged by petitioner, that liability can never attach until after the passenger has emerged from the air terminal, must be rejected. It has no basis in the language of the Convention, it is not supported by the legislative history, and it is not relevant to modern conditions....
.. we believe that the question whether an accident occurred "in the course of any of the operations of embarking" must turn upon a close analysis of the particular facts and not upon the brightline test offered by petitioner. The courts below adopted "a tripartite test based on activity (what the plaintiffs were doing), control (at whose direction) and location." . . . These factors, together with timing, i.e., the temporal proximity of the accident to scheduled boarding or actual deplaning, appear to us to be the appropriate ones to be considered. The objective of the Warsaw Conference in adopting article 17 was to identify a zone within which the carrier could fairly be made to shoulder the principal responsibility of protecting against the risk of injury to passengers, e.g., a zone within which a rebuttable presumption of liability would not be unreasonable. It is consistent with that objective to consider the factors of activity, control, location, and timing in giving content to the broad language of article 17.
To petitioner's contention that the decision below was "in direct conflict" with Mache v. Air France, Rev. Fr. Droit Aerien 311 (Cour de Cassation 1970), the Solicitor General's brief replied:
although international uniformity of construction is to be desired, especially since such uniformity was the purpose of the Convention, for the reasons stated above,. . . the Court of Appeals did not err in refusing to adopt the French court's restrictive reading of article 17. U.S. courts need not defer to the decisions of foreign courts when to do so would achieve uniformity only at the cost of misconstruction.
In Evangelinos v. Trans World Airlines, Inc., 44 U.S. Law Week 2533 (1976), the Third Circuit Court of Appeals on May 4, 1976, reversed the District Court holding at 396 F. Supp. 95 (1975) where a result contrary to Day v. Trans World Airlines, Inc., supra, had been reached. See the 1975 Digest, pp. 457-458. The Court of Appeals acknowledged that its task had been significantly facilitated by the Second Circuit's decision in Day. It agreed with the result in Day that under article 17 of the Warsaw Convention the carrier was absolutely liable for injuries sustained by air passengers who suffered from a terrorist attack while standing in line at a departure gate in the terminal building waiting to undergo search.
A petition for rehearing en banc was granted June 3, 1976.
In Hernandez v. Air France, 545 F. 2d 279 (1976), the First Circuit Court of Appeals held on November 19, 1976, that injuries suffered by air passengers during a terrorist attack in the baggage retrieval area of an air terminal building while passengers were waiting for their luggage were not incurred while "disembarking" within the meaning of article 17 of the Warsaw Convention. The case arose out of an act of terrorism at Lod International Airport near Tel Aviv, Israel. The plaintiff-appellants sought damages from the defendant carrier for death and personal injury under the Warsaw Convention, as modified by the Montreal Agreement.
The District Court, citing the First Circuit's opinion in Mac Donald v. Air Canada (1971) as a precedent, held that the attack did not occur during disembarkation. In MacDonald, the Court held article 17 not applicable to injuries sustained by an arriving passenger who fell in the baggage pick-up area of an airport. The Court of Appeals was asked to reexamine MacDonald in the light of recent decisions (Day and Evangelinos, supra). It ruled that MacDonald did not foreclose use of the Day-Evangelinos tripartite test, and observed:
... we believe that the nature of a plaintiff's activity when injured, its location, and the extent to which the airline was exercising control over plaintiff at the time of injury are certainly
relevant considerations in determining the applicability of article 17. On the facts of this case, however, the application of these criteria require the conclusion that plaintiffs did not have a right to recover under article 17.
Considering first the passengers' activity, we note that at the time of the attack the passengers had already emerged from the aircraft, descended the stairs from the plane to the ground, traveled via bus or foot from the plane to the terminal, and presented their passports to the Israeli authorities. On these facts we do not believe it can be said that the passengers were still engaged in any activity relating to effecting their separation from the aircraft. All that remained to be done before the passengers left the airport was to pick up their baggage. We observe that passengers, who either carry no luggage or carry their luggage on the plane, will have no occasion to retrieve their baggage. It hardly seems, therefore, that such activity can constitute a necessary step in becoming separated from a plane. The passengers' location also militates against article 17 coverage in this case since the attack occurred inside the terminal building located approximately onethird to one-half mile from the point where the aircraft was parked. We also believe that the control factor weighs against holding the carrier liable. In sharp contrast to the factual situation in Day and Evangelinos, the passengers here were not segregated into a group at the direction of airline employees. There is no indication that airline personnel were dictating to the passengers how they were to go about retrieving their baggage or leaving the terminal. Rather, the passengers appear to have been "free agents roaming at will through the terminal." Day, supra, 528 F.2d at 33. Thus we conclude that this tragedy did not occur during disembarkation.
The Court also examined the negotiating history of article 17, including the negotiators' rejection of the draft prepared by a committee of experts, Comité Internationale Technique d'Experts Juridique Aeriens (CITEJA), which would have provided carrier liability from the moment passengers enter an airport of departure up to the time they leave the airport of destination. The Court found the rejection of that draft persuasive evidence that the negotiators "understood embarkation and disembarkation as essentially the physical activity of entering or exiting from an aircraft, rather than as a broader notion of initiating or ending a trip."
The Court did not accept the argument that a terrorist attack is appropriately regarded as a characteristic risk of air travel. It added:
Unlike the risk of hijacking, . . . where the aircraft and the fact of air travel are prerequisites to the crime, we think the risk of a random attack such as that which gave rise to this litigation is not a risk characteristic of travel by aircraft, but rather is a risk of living in a world such as ours. .
Liability of Employees of Carrier
In Reed v. Wiser, No. 75 Civ. 4015 (slip opinion), the U.S. District Court for the Southern District of New York ruled, for pretrial purposes on April 19, 1976, that the limitation of liability provisions of the Warsaw Convention do not apply to employees or agents of the carrier. Plaintiffs, who were heirs and next-of-kin of passengers who died in a Trans World Airlines crash near Greece in 1974, brought action against the TWA president and a vice president in charge of security, alleging that the crash was due to a bomb explosion aboard the aircraft, resulting from defendants' negligent failure to maintain an adequate security system.
The Court granted a motion to strike the defendants' affirmative defense that damages were limited to $75,000 for each decedent by the terms of the Warsaw Convention, as supplemented by the 1966 Montreal Agreement (Dept. of State Bulletin, Vol. LIV, No. 1407, June 13, 1966, pp. 955-956). While acknowledging that the question was not susceptible of a clear and entirely confident answer, the Court gave weight to the fact that the Warsaw Convention contains no definition of "carrier" but includes separate, distinguishing references to carriers and their agents (e.g. arts. 20(1) and 25). It also noted that there is a "powerful national policy favoring compensatory damages from tortfeasors who cause personal injury," as well as an aversion of U.S. law toward stipulations by common carriers "without congressional authority. . .against their own negligence or that of their agents or servants."
The Court found especially persuasive the failure of the United States to adhere to the Hague Protocol of 1955, containing a new article 25A which, said the Court, "expressly resolves the issue before this Court by extending the Warsaw limits of liability to the carrier's servants and agents acting within the scope of their employment." The Court said it considered this a datum "relevant in ascertaining the proper construction of the treaty's provisions," citing Day v. Trans World Airlines, Inc., 528 F.2d 31 (1975). See ante, p. 402.
In Butz v. British Airways, 421 F. Supp. 127 (1976), a passenger who had bought a 45-day excursion ticket-London to New York to London-brought action alleging injuries, including hearing loss and nerve damage, suffered in the descent at New York. On the airline's motion to dismiss the complaint, the U.S. District Court for the Eastern District of Pennsylvania held on October 20, 1976, that the only place of destination was London. It therefore ruled that the District Court was precluded from exercising jurisdiction under
article 28 of the Warsaw Convention (TS 876; 49 Stat. 3000), since the principal place of business of the airline and the place of business through which the contract had been made was also in London.
The opinion stated:
Whether the return portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the passenger back to the place of origin within the prescribed time and the passenger for her part agreed to pay the fare and, in fact, did pay the fare
It is my conclusion that there is only one place of destination for Warsaw Convention purposes which in this case was London. I cannot accept plaintiff's contention that each place where a particular flight terminated is a "place of destination" since the application of the convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket.
Protocols of Amendment
On December 23, 1976, the Department of State forwarded to the President two protocols of amendment of the Warsaw Convention with the recommendation that they be transmitted to the Senate for advice and consent to ratification. The two related protocols, done at Montreal on September 25, 1975, are:
a. Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as Amended by the Protocols done at The Hague on September 28, 1955, and at Guatemala City, March 8, 1971 (hereinafter, Montreal Protocol No.3); and
b. Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929 as Amended by the Protocol done at The Hague on September 8, 1955 (hereinafter, Montreal Protocol No. 4).
The following are excerpts from the Department of State's report to the President:
Since the early 1950's, international negotiations have been held for the purpose of adopting amendments to the Warsaw Convention of 1929 (adhered to by the United States in 1934). The Warsaw Convention provides rules governing generally the liability of air carriers with respect to passengers, baggage, and cargo moving in