No. 76-1146.United States Court of Appeals, First Circuit.Submitted June 8, 1976.
Decided November 19, 1976.
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Stanley Feldstein, San Juan, P. R., and Nachman, Feldstein, Gelpi, Toro Hernandez, San Juan, P. R., on brief for appellants.
William J. Junkerman, New York City, Vicente M. Ydrach, Hato Rey, P. R., Randal R. Craft, Jr., and William F. Martin, Jr., New York City, on brief for appellee.
Appeal from the District Court for the District of Puerto Rico.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
[1] This case arises out of an act of terrorism which occurred on May 30, 1972, in the baggage retrieval area of the terminal building at Lod International Airport located near Tel Aviv, Israel. Plaintiffs-appellants seek damages from defendant airPage 281
carrier for death and personal injury, asserting that under the Warsaw Convention, as modified by the Montreal Agreement,[1] the defendant is liable without regard to fault for damages sustained in the attack. This is an interlocutory appeal, 28 U.S.C. § 1292(b) (1970), from the district court’s dismissal of plaintiffs’ Warsaw Convention claims. The single issue presented is whether the attack occurred while the passengers were disembarking within the meaning of article 17 of the Convention, which reads as follows:
[2] Because the precise circumstances surrounding the terrorist act of May 30, 1972 are highly relevant to our disposition, we reproduce the pertinent portion of the district court’s careful summation of the facts:“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.”
[3] The district court, citing our decision in MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971), as a controlling precedent, held that the attack did not occur during disembarkation. In MacDonald we held that article 17 of the Warsaw Convention was not applicable to injuries sustained by an arriving passenger who fell in the baggage pickup area of an airport, both because there was insufficient evidence that the fall was the result of an accident and because the injury did not occur during disembarkation. 439 F.2d at 1404-05.“[Plaintiffs] were members of a large group of Puerto Rico tourists traveling on defendant Air France’s Flight No. 132 to Tel Aviv. Flight No. 132 originated in New York, with intermediate stops at Paris and Rome. Three Japanese, in the service of a Palestinian terrorist organization, boarded the plane at Rome. On arrival at Lod Airport, the plane came to a halt about one-third to one-half mile from the Terminal Building. The passengers descended movable stairs to the ground and then walked or rode on a bus to the terminal. There, they presented their passports for inspection by Israeli immigration officials and then passed into the main baggage area of the terminal. While the passengers were awaiting the arrival of the last baggage from the plane, the three Japanese terrorists removed their luggage from the conveyor belt, produced submachine guns and hand grenades, and opened fire upon persons in the baggage area, killing or wounding many, including plaintiff and plaintiffs’ decedents.” In re Tel Aviv, 405 F. Supp. 154, 155
(D.P.R. 1975).
[4] Other precedents concerning the application of article 17 to various factual situations involving arriving passengers support this reading. The phrase “operations of . . . disembarking” has been held not to cover injuries sustained where a passenger“If these words are given their ordinary meaning, it would seem 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 of the terminal . . . .” Id. at 1405.
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was hurt by a conveyor belt in the baggage pickup area, Klein v. KLM Royal Dutch Airlines, 46 A.D.2d 679, 360 N.Y.S.2d 60
(1974), fell on an escalator after leaving the plane via a jetway but before reaching the health, immigration, baggage, and customs stations, Felismina v. Trans World Airlines, Inc., 13 Av.Cas. 17, 145 (S.D.N.Y. 1974), or fell over construction debris in an open air customs area while walking from the plane to the terminal, Mache v. Air France, [1967] Rev. Fr. Droit Aerien 343 (Cour d’Appel, Rouen), aff’d [1970] Rev. Fr. Droit Aerien 311 (Cour de Cassation).
courts held that the attack occurred during embarkation and thus imposed liability on the carrier. We do not view our holding i MacDonald as necessarily fore-closing the adoption of th Day-Evangelinos tripartite test,[2] and 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. [6] 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.[3] The passengers’ location also militates against article 17 coverage in this case since the attack occurred inside the terminal building located approximately one-third to one-half mile from the point where the aircraft was parked. [7] We also believe that the control factor weighs against holding the carrier liable.[4]
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In sharp contrast to the factual situation in Day an 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.[5] 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.
[8] Our review of the drafting history of the Convention reinforces our conclusion that article 17 does not cover this case. At the 1929 Warsaw conference the delegates had before them a draft prepared by a committee of experts, Comite Internationale Technique d’Experts Juridique Aeriens, CITEJA, which provided that the period of carriage, and hence of carrier liability, extended[9] This proposal encountered opposition and provoked debate among the delegates on the proper scope of carrier liability. The discussion of liability for passengers centered on two proposals: the initial aerodrome to aerodrome principle and a less well articulated, more restrictive, view variously expressed as “from the moment when the travelers have boarded”, Minutes 71, or “when [the passenger] embarks on the aircraft”, Minutes 82. Mr. Ripert of France advanced the view that it was pointless to seek a definitive formula and therefore the text should“from the moment when the travelers, goods or baggage enter in the aerodrome of departure, up to the moment when they leave the aerodrome of destination . . . .” Minutes, supra note 3, at 67-68 [hereinafter “Minutes”].
[10] Sir Alfred Dennis of Britain proposed that votes be taken on the “questions of principle” concerning carrier liability and that the matter be submitted to the drafting committee. Minutes 80. This proposal was adopted, and in the vote on liability for passengers the CITEJA draft was rejected in favor of the more restrictive view.[6] Minutes 83. The drafting committee produced the current language of article 17, “on board the aircraft or in the course of any of the operations of embarking or disembarking”, and this text was adopted without further discussion. Minutes 166. [11] While it is true that this drafting history does not determine the precise meaning of article 17, we think it does illuminate the intention of the Warsaw Convention drafters. We are persuaded that the delegates understood embarkation“employ a general formula — `during air carriage’ — in leaving to the courts the duty of deciding in each case if one is within the contract of carriage.” Minutes 73.
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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. Although the delegates did not seek to resolve the line drawing problems presented by close cases — cases in which the tripartite test of Day-Evangelinos
may be useful guides for decision — we think that the rejection of the CITEJA draft does imply that the carrier is not to be held liable for all damage which might befall a traveler as he goes about various activities in the airport before or after his flight.[7]
slip opinion at 7. We do not think that this can be said of the sort of senseless act of violence involved in this case. The risk of violence at the hand of zealots is all too present in any public place whether it be a bank, courthouse, university campus, an Olympic village, or airport. Unlike the risk of hijacking see Husserl v. Swiss Air Transport Co., 351 F. Supp. 702, 706-07
(S.D.N.Y. 1972), aff’d per curiam, 485 F.2d 1240 (2d Cir. 1973), where the aircraft and the fact of air travel are prerequisites to the crime,[8] 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. See Evangelinos, supra (Seitz, C. J., dissenting) (slip op. at 3). [14] We observe that to expand carrier liability under article 17 to include all terrorist attacks at airports would produce anomalous results. Under article 17, only passengers could have a right to recover. It is likely, however, that nonpassengers would be injured by attacks which occur in locations such as baggage retrieval areas. To give passengers who are so injured a strict liability remedy against the carrier — who, unlike the terminal operator, presumably has no control over the situation — but to relegate the nonpassengers to their remedies under local law, would be odd indeed. It would seem to be more rational in this grey area, not clearly involving disembarking, to treat passengers and nonpassengers alike. This would mean leaving them to the remedies of local law. These, at least in most cases, would not be illusory. Moreover, contemporary theories of cost allocation may well be reflected in the provisions of local law. [15] We hold that on the particular facts of this case, where the passengers were waiting for their baggage inside the terminal building, had left the aircraft and its immediate vicinity, and were no longer acting at the direction of the carrier, the process of
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disembarkation had been completed and article 17 of the Warsaw Convention, therefore, is not applicable.
[16] Affirmed.49 U.S.C. § 1502 note (1970), and the denunciation notice was withdrawn. The air carriers agreed, pursuant to article 22(1), to raise the liability limit to $75,000 and to waive the due care defense. The result is a strict liability cause of action for damages within the scope of article 17. See generally,
Lowenfeld Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497 (1967).
Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw, p. 72 (R. Horner D. Legrez transl. 1975), and, for that reason, were treated in separate articles.
“[A]s regards travelers, does liability begin, as it said in the draft, upon the entrance into the aerodrome of departure, or does it begin when the traveler is on board the aircraft?” Minutes 80.
Similarly, the Brazilian delegate stated:
“It’s a question of saying, whether the liability of the carrier begins as soon as the traveler enters into the aerodrome, which is a public place, or when he embarks on the aircraft.” Minutes 82.
(1976).[1] That opinion suggested that claims under Article 17 of the Warsaw Convention are not to be resolved in terms of a simple location test (where the injury occurred), but rather by application of “a tripartite test based on activity (what the plaintiffs were doing), control (at whose direction) and location.” Id. at 33. I believe that this tripartite test represents a reasonable and flexible basis for analyzing Article 17 cases, because it is consistent both with the terms of the Convention and with the realities of modern air travel. In my opinion, the Second Circuit’s holding concerning the embarkation provision of Article 17 is equally applicable to disembarkation cases:
[19] Examining the instant claim in the light of this tripartite test, I am persuaded that Air France was no longer in rea control of the passengers’ activity when the terroristic attack took place.[2] Although, when viewed in terms of the other two factors, this case presents a close question, I believe that the airline’s control was so exiguous or even non-existent that I do not think that Article 17 applies. For these reasons, I concur in the judgment of the court.“We are of the view that the words `in the course of any of the operations of embarking’ do not exclude events transpiring within a terminal building. Nor, do these words set forth any strictures on location. Rather, the drafters of the Convention looked to whether the passenger’s actions were a part of the operation or process of embarkation . . . .” Id. at 33 (footnote omitted).