Constantine Evangelinos v. Trans World Airlines, Incorporated , 550 F.2d 152 ( 1977 )

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

On August 5,1973, the Transit Lounge of the Hellinkon Airport in Athens, Greece, was the scene of a vicious terrorist attack on the passengers of TWA’s New York bound Flight 881. The principal question presented by this interlocutory appeal¹ concerns the liability of Trans World Airlines under the terms of the Warsaw Convention, 49 Stat. 3000, et seq. (1934), as modified by the Montreal Agreement of 1966, 31 Fed. Reg. 7302 (1966).² The district court concluded that the terms of the Convention were not applicable to the plaintiffs at the time of the terrorist attack and accordingly granted TWA’s motion for partial summary judgment, dismissing the claim under the Warsaw Convention.³ Evangelinos v. Trans World Airlines, 396 F.Supp. 95 (W.D. Pa.1975). We reverse and remand.

The facts of the attack on which this litigation is based have been exhaustively summarized elsewhere⁴ and need not be repeated here. It is enough to state briefly that, at the time of the attack, plaintiffs had already completed all the steps necessary to boarding the aircraft except (1) undergoing physical and handbag searches,⁵ and (2) physically proceeding from the search area to the aircraft some 250 meters away. Immediately after Flight 881 was announced over the Transit Lounge loudspeaker, the passengers were instructed to form two lines in front of Departure Gate 4. And, while all but a handful of passengers were standing in those lines awaiting the search procedure,⁶ two terrorists fired bursts of automatic weapons fire in the general direction of the TWA queues and hurled hand grenades, which exploded in the vicinity of the passengers.

Under the terms of the Warsaw Convention, as modified, TWA is absolutely liable up to a limit of $75,000. per passenger if an incident which causes passenger injury or death falls within the ambit of Article 17 of the Convention.⁷ Article 17 provides:

“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.” (Emphasis added.)

TWA does not dispute the district court’s conclusion that a terrorist attack on airline passengers is an “accident” within the meaning of Article 17. Thus the central question is whether the attack took place “in the course of any of the operations of embarking. . . . ”

Our task has been significantly facilitated by the Second Circuit’s recent decision in Day v. Trans World Airlines, 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), an identical ease arising out of the same incident.⁸ See also Leppo v. Trans World Airlines, Inc., Misc. (N.Y.Sup.Ct. No. 21770-1973, Trial Term, Part 62, Decision of Mar. 10, 1976, N.Y. County). In the Day case, Chief Judge Kaufman, in a thorough and scholarly opinion, carefully analyzed the history and purposes of the Warsaw Convention, as modified. Emphasizing the American experience under the Convention, the current expectation of air carriers governed by the Convention as modified, and the considerations militating in favor of liability in this case, the Day court unanimously concluded that the activities of the TWA passengers at the Athens airport fell within the purview of the phrase “the operations of embarking.” We agree with the result reached in Day, although our reasoning differs slightly, and note that there is a substantial interest in uniformity of decision in this area. Cf. Block v. Gompagnie Nationale Air France, 386 F.2d 323, 337 (5th Cir. 1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968).

TWA has urged us to devise an easily predictable rule as to when liability attaches. We agree that this is desirable. However enticing as such an approach might be, we cannot accede to the notion that a line can be drawn at a particular point, such as the exit door of an air terminal which leads to the airfield. This is because a test that relies upon location alone is both too arbitrary and too specific to have broad application, since almost every situation and every airport is different. In our view, three factors are primarily relevant to a determination of the question of liability under Article 17: location of the accident, the activity in which the injured person was engaged, and the control by defendant of such injured person at the location and during the activity taking place at the time of the accident alleged to be “in the course of any of the operations of embarking,”^8a may be relevant to the decision under Article 17, and bear significantly upon the tests of activity and location.

In so recognizing, we place less weight upon carrier control over passengers than did the Day court. While control remains at least equally as important as location and activity, it is an integral factor in evaluating both location and activity. A standard based primarily upon these three factors seems best calculated to effect the policies underlying Article 17.

Giving the phrase “in the course of any of the operations of embarking” a common sense construction, we agree with plaintiffs’ contention that we must examine the nature of the activity in which plaintiffs were engaged to determine if that activity can fairly be considered part of “the operations of embarking.” Nothing in the Convention defines the term “operations of embarking” or otherwise defines the period of liability prior to entering the aircraft door. Nevertheless, for substantially the same reasons expressed in Day v. Trans World Airlines, supra, 528 F.2d at 33-34, we believe it is appropriate under all the facts and circumstances of this case to view the preboarding searches as part of the “operations of embarking.”

The undisputed facts reveal that, at the time of the attack, the plaintiffs had completed virtually all the activities required as a prerequisite to boarding, and were standing in line at the departure gate ready to proceed to the aircraft. The plaintiffs’ injuries were sustained while they were acting at the explicit direction of TWA, and while they were performing the final act required as a prerequisite to boarding busses employed by TWA to take the Evangelinos family to the aircraft. More significantly, at the time these operations had commenced, Flight 881 had already been called for final boarding. As a result, TWA passengers were no longer mingling over a broad area with passengers of other airlines. Instead, acting pursuant to instructions, they were congregated in a specific geographical area designated by TWA and were identifiable as a group associated with Flight 881.

By announcing the flight, forming the group and directing the passengers as a group to stand near the departure gate, TWA had assumed control over the group and caused them to congregate in an area and formation directly and solely related to embarkation on Flight 881. This conclusion is supported by the fact that TWA service personnel were standing at Gate 4, guiding the passengers, and TWA security personnel were present. Under these circumstances, it is reasonable to conclude that TWA had begun to perform its obligation as air carrier under the contract of carriage and that TWA, by announcing the flight and taking control of the passengers as a group, had assumed responsibility for the plaintiffs’ protection. Thus, for all practical purposes, “the operations of embarking” had begun. This conclusion is supported by Blumenfeld v. Bea, 1962 Z. Luft. R. 78 (Berlin Court of Appeals 1961), a case which would allow coverage under the facts present here.⁹

Neither MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971), nor the French case of Maché v. Air France, Rev. Fr. Dr. Aér. 343 (Cour d’Appel de Rouen 1967), aff’d. Rev. Fr. Dr. Aér. 311 (Cour de Cassation 1970) (reprinted in translation as Exhibit B to appellee’s brief), is inconsistent with the conclusion that “the operations of embarking” had commenced at the time of the accident in this case. First, both cases involved disembarking, where the nature and extent of the carrier’s control over the passenger and the type of activity in which plaintiff was engaged differed significantly from the case at bar.¹⁰ Further, both the MacDonald and Maché courts considered the Convention’s original goal of developing rules to govern the risks then thought to be inherent in air carriage and concluded, on that basis, that the Convention did not apply because the plaintiffs had reached “safe” points, distant from such risks. MacDonald v. Air Canada, supra at 1405; Maché v. Air France, supra. See also Sullivan, The Codification of Air Carrier Liability by International Convention, 7 Journal of Air Law 1, 20 (1936). Since the danger of violence— whether in the form of terrorism, hijacking or sabotage — is today so closely associated with air transportation, the tripartite test we adopt here is more realistic in determining a “safe place” removed from air transportation risks. Here, applying that test, we conclude that the plaintiffs were not located in a “safe place,” removed from risks now inherent in air transportation.^10a To reach any other result would be to freeze the Warsaw Convention in its 1929 mold, when air travel was in its infancy, and to ignore current air travel procedures and the special risks created by the type of violence that resulted in this tragedy.

Nor are we convinced by TWA’s principal argument that “the operations of embarking” can never occur within the physical confines of an air terminal building and that the Warsaw Convention is, therefore, inapplicable. Starting, as we must, with the actual language used in Article 17, we are struck by the fact that nothing in Article 17 suggests a limitation on the period of liability based strictly on the location of the “operations of embarking or disembarking.” To the contrary, the contrast between the phrase “while on board the aircraft” and the phrase “in the course of any of the operations of embarking . . .” indicates that the draftsmen of Article 17 made a conscious choice to go beyond a mere location test. Further, adoption of the strict location test advanced by TWA could lead to differing results resting solely on the fortuity of where passengers are placed at the time of injury. In the absence of plain language compelling such a conclusion, we reject it.

Recognizing that nothing on the face of Article 17 supports its argument, TWA directs our attention to the treaty making history of that Article. The pertinent history consists of debates that centered around Article 20 of the draft Convention prepared by a small committee of experts, Comité Internationale Technique d’Experts Juridique Aeriens (CITEJA), for consideration at Warsaw. Article 20 of the CITEJA draft provided in part:

“The period of carriage, for the application of the provisions of the present chapter [Liability of the Carrier] shall extend from the moment when the travelers . enter the aerodrome of departure, up to the moment when they leave the aerodrome of destination . . . .”

When the draft Article 20 came up for consideration, it provoked considerable debate between those who endorsed the expansive aerodrome-to-aerodrome period of liability and those who espoused a more restrictive view. Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw, 67-84 (R. Horner & D. Legrez transí. 1975) (hereinafter Minutes). Ultimately the principle of aerodrome-to-aerodrome liability was put to a vote and defeated. Minutes at 82-83. The problem of drafting a new article in conformity with the vote was then referred to a drafting committee and Article 17 in its present form emerged.

TWA contends that the rejection of the CITEJA draft demonstrates that the delegates intended to exclude from the period of liability the time during which passengers are inside air terminal buildings. We disagree. While the rejection of the CITE-JA draft indisputably reflected an intent to restrict the expansive period of liability envisioned by Article 20, nothing in the debates indicates that the line was finally and unalterably drawn at the walls of airline terminal buildings.¹¹ Surely if such an explicit line had been intended, the language of Article 17 would now reflect it. Moreover, the debates indicate confusion among the delegates themselves as to the meaning of the rejection of the CITEJA draft. Minutes at 83-84.¹² We are, therefore, especially reluctant to draw conclusions which are not reflected in the work of a drafting committee that had the advantage of considering the debates contemporaneously.

The most that can be said is that the draftsmen rejected the concept of automatic liability (subject, of course, to the defenses provided elsewhere in the Convention) for all accidents within the limits of the departing or arrival aerodromes. Our conclusion that under certain circumstances there may be liability for some accidents within a terminal building is not inconsistent with that intent.¹³

Accordingly, the June 26, 1975, judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.

1 . By amended order dated June 26, 1975, the district court certified this appeal pursuant to 28 U.S.C. § 1292(b) (232-33a). On July 21, 1975, we granted plaintiff-appellants’ petition for permission to appeal. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1332. Plaintiffs are citizens of Ohio. Defendant is incorporated in the State of Delaware and has its principal place of business in New York.

2 . Both the Convention, a treaty officially entitled “A Convention for the Unification of Certain Rules Relating To International Transportation by Air,” and the Montreal Agreement are reprinted at 49 U.S.C. § 1502 note (1970).

3 . The complaint alleged both absolute liability under the Warsaw Convention, as modified, and negligence.

4 . Evangelinos v. Trans World Airlines, Inc., supra at 96-98, and Day v. Trans World Airlines, 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976).

5 . These searches were required and conducted by the Greek Government and were prerequisites of being permitted to leave the airport by plane. TWA had two guards stationed inside the terminal building immediately beyond the search procedure area.

6 . The district court stated that:

“. . . entrance to [the Transit Lounge] is restricted to passengers ticketed and scheduled to depart on international flights of the . . . carriers operating out of the terminal and to other personnel, who are not passengers, needed to service the area. . . . At . . . Gate [4], there are two separate lines, one for males and one for females, where there is a handbag search and a physical search made by the Greek Police. There are tables for examination of hand luggage and behind the tables were located two booths for physical search of all persons intending to depart. After the search, passengers would proceed through double doors out of the Transit Lounge where they boarded buses for transportation to the aircraft stationed at some distance from Gate 4.

“. . . Two TWA Security Guards were stationed at Gate 4 as well as at least two passenger service personnel of TWA. After being physically searched, the passengers would have walked to two sets of exit doors which led from the Transit Lounge to a raised terrace attached to the terminal building. Two sets of stairs were located on the east side of the terrace leading to a waiting area where there was a bus . . . intended to carry persons across the traffic apron a distance of approximately 250 meters to where the airplanes were parked for loading.

“At the time of the attack, all eighty-nine passengers scheduled to board TWA Flight 881 had checked in and received their boarding passes. The Plaintiffs had completed the various steps required and began to queue up in two lines preparatory to proceeding through the hand baggage and physical searches. .

“Approximately seven Flight 881 passengers had departed through Gate 4, exited the Transit Lounge, and had either boarded or were about to board the bus previously referred to. The great majority of the eighty-nine scheduled passengers for Flight 881 were in line in front of the tables at Gate 4 at the time of the incident. The Plaintiffs were injured while being queued up in line in front of Gate 4 while waiting to be searched.”

Pages 97-98 of 396 F.Supp. (footnotes omitted).

7 . As originally conceived and drafted, the Convention effected a bargain in which airline passengers traded a monetary limitation on damages — the equivalent of $8,300. per passenger — for the establishment of a rebuttable presumption of liability on the part of the carrier for “accidents” falling within the ambit of the Convention. Warsaw Convention, Chap. III. American dissatisfaction with this bargain, especially the limits on damages, ultimately led to the Montreal Agreement, a voluntary agreement between air carriers governing international transportation that involved a United States location. Pursuant to the Agreement, each participating airline filed with the Civil Aeronautics Board a contract under which the damages limit was raised to $75,000. and the various carriers agreed not to assert any of the affirmative defenses provided in Article 20 of the Convention. The effect was contractual creation of a new regime of absolute liability for damages arising from incidents falling within the Convention. For excellent discussions of the background of the Warsaw Convention and the Montreal Agreement, see Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968); Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497 (1967); Note, Warsaw Convention — Air Carrier Liability For Passenger Injuries Sustained Within A Terminal, 45 Ford.L.Rev. 369 (issue of November 1976).

8 . In addition to noting the Supreme Court’s denial of certiorari in the Day case, counsel have furnished us the Memorandum of the United States, as amicus curiae in that case, filed by the Solicitor General with the Supreme Court in September 1976, concluding that the “petition for a writ of certiorari should be denied.” That Memorandum includes a detailed analysis of the relevant sections of the Warsaw Convention, and a consideration of Evangelinos v. Trans World Airlines, Inc. Opinion of May 4, 1976 (No. 75-1990, 3d Cir.), the panel decision of this court which underlies the instant rehearing in banc, MacDonald v. Air Canada, (1st Cir. 1971) (stating at pages 12-13 that MacDonald appears consistent with Day and the May 4, 1976 panel opinion in this case), and Maché v. Air France, Rev. Fr. Dr. Aér. 311 (Cour de Cassation 1970) (concluding that, to the extent the Maché case is inconsistent with Day, “the view appears to be in the nature of dictum [and] the extent to which it will be adhered to in future cases may be a matter of some doubt”).

8a . For example, the fact that the airline exercised strict control of passengers at the time of checking their baggage near the entrance to the airport terminal building might be irrelevant to the location and activity factors where such control was relinquished and only reassumed after entry into the line formed for going through the gate leading to the walkway or passenger bus transportation to the aircraft. Another possibly relevant factor is whether the cause of the accident is a hazard of air travel as it exists at the time of the accident, since the Warsaw Convention was concerned with such hazards. The extensive use of air travel in international transportation of people has made terroristic attacks common in and near major airport terminals, even though they also take place at other locations. See Note, supra note 7, at 382-87 (IV C).

9 . In Blumenfeld, the plaintiff fell and broke her leg and ankle on the stairs leading from the waiting room for departing passengers to the traffic apron. The Berlin Court of Appeals, in interpreting Article 17, stated that “the air carrier takes charge of the flight passengers when he requests them to go from the waiting room to the aircraft. Already at that time the air carrier begins to carry out the transportation contract, the essential accessory obligation of which consists in providing for the safety of passengers in every respect and in securing the traffic which was begun.” (Translation agreed upon by counsel for all parties.)

10 . The recent case of Hernandez v. Air France, 545 F.2d 279, No. 76-1146 (1st Cir. 1976), makes clear that the First Circuit’s earlier decision in MacDonald is not in conflict with the conclusion which we reach here. In MacDonald, the plaintiff was injured while she was waiting for her baggage in the baggage claim area of Boston International Airport. She was in no sense under the control of the airline or acting as a part of a group under direct airline supervision. In Re Tel Aviv, 405 F.Supp. 154 (D.P.R., 1975), aff’d sub nom., Hernandez et al. v. Air France, 545 F.2d 279, No. 76-1146 (1st Cir. 1976), a disembarkation case arising in the same Circuit as MacDonald, nevertheless apparently subscribes to the Day-Evangelinos tripartite (location, activity and control) test, but held that the plaintiff (in Hernandez) even under that test could not recover. Tn affirming the district court, the First Circuit endorsed and applied this tripartite test, saying:

“We do not view our holding in MacDonald as necessarily foreclosing the adoption of the Day -Evangélicos tripartite test, and we believe that the nature of a plaintiffs 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 the right to recover under article 17.”

Hernandez, supra, at 282.

Also we note that plaintiff in Maché was arguing against the applicability of the Warsaw Convention and that the court in MacDonald held that the plaintiff’s injuries in that case were not caused by an “accident” within the meaning of Article 17.

10a . In Re Tel Aviv, supra, which is cited in note 10, supra, indicates that these dangers of terrorism are continuing. Terrorist attacks occur where there are concentrations of people in order to secure maximum publicity and, therefore, are common in international airports, due to the large volume of international air travel. The large international airport terminals of 1973 did not exist either in 1929, when the Warsaw Convention was adopted, or in 1934, when the United States adhered to that Convention.

11 . In 1929, the word “aerodrome” meant the entire airfield property on which there were several buildings used by passengers, as opposed to the single, large, air terminal building characteristic of major airports in this country today.

12 . We do not find the debates as clear as the dissent indicates. Although the delegates agreed that “rejection of [Draft Article 20] led to acceptance of the opposite principle,” it is unclear as to what that “opposite principle” was. In Day, supra, the Second Circuit concluded that the Convention had adopted the views of Prof. Georges Ripert of France — the “dean of French writers on civil law” — who “proposed that the article be recast in terms broad enough to allow the courts to take into account the facts of each case.” 528 F.2d at 34-35. In any event, it is clear from the final language of Article 17,that the strict Brazilian proposal, as articulated by the delegate from Great Britain, which would have limited the period of liability to the time when passengers were “on board the aircraft,” was not adopted.

13 . In analyzing this case, as we have, in light of location and activity as well as the carrier’s control over the passengers and the likelihood of injury by a cause inherent in air transportation, we have accommodated the concerns of those who opposed the CITEJA draft without doing violence to the language of Article 17. Cf. Shawcross & Beaumont, Air Law, at 441-42 (3d ed. 1966); Matte, Traité de Droit Aerien Aeronautique, at 404-05 (1964); Sullivan, supra.

The debates indicate that the principal fear was that carriers would be liable for injuries sustained by passengers at times when the airline had no control over what the passengers were doing. As Prof. Georges Ripert-of France stated:

“There is real difficulty only for travellers, and this difficulty arises from the fact that the traveller has his independence . .

Minutes at 73.

Virtually all delegates agreed that there should be liability while the passengers were onboard the aircraft — a period when the carrier has complete control over both the passengers and their environment.