Day v. Trans World Airlines, Inc., 73 Civ. 4105-CLB

• Decision Date: 31 March 1975
• Docket Number: No. 73 Civ. 4105-CLB,74 Civ. 3355-CLB and 74 Civ. 4191-CLB.,73 Civ. 4105-CLB
• Citation: 393 F. Supp. 217
• Parties: Aristedes A. DAY et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant. Kate KERSEN, Individually and as Administratrix and Administratrix Ad Prosequendum of the Estate of Elbert Kersen, Deceased, Plaintiff, v. TRANS WORLD AIRLINES, INC., Defendant. John SPIRIDAKIS et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

393 F. Supp. 217

Aristedes A. DAY et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.

Kate KERSEN, Individually and as Administratrix and Administratrix Ad Prosequendum of the Estate of Elbert Kersen, Deceased, Plaintiff, v. TRANS WORLD AIRLINES, INC., Defendant.

John SPIRIDAKIS et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.

Nos. 73 Civ. 4105-CLB, 74 Civ. 3355-CLB and 74 Civ. 4191-CLB.

United States District Court, S. D. New York.

March 31, 1975.

W. Hubert Plummer, Nicolas Liakas, Rogers Hoge & Hills, Milton G. Sincoff, Alan J. Konigsberg, Kreindler & Kreindler, Fred Ehrlich, Brown, Hurwitz, Seidman, Ehrlich & Zasky, New York City, for plaintiffs.

Paul G. Pennoyer, Jr., John N. Romans, Charles K. O'Neill, Chadbourne, Parke, Whiteside & Wolff, New York City, for defendant.

MEMORANDUM DECISION

BRIEANT, District Judge.

These actions are brought by plaintiffs, international passengers on defendant airline ("TWA") to recover damages for personal injuries sustained during a terrorist attack in the transit lounge at Hellenikon Airport, Athens, Greece on August 5, 1973. Plaintiffs allege, inter alia, liability without fault under the provisions of the Warsaw Convention, 49 Stat. 3000 et seq. (1934), as modified in accordance with the Montreal Agreement (1966). Plaintiffs moved pursuant to Rule 56, F.R.Civ.P. for summary judgment on the issue of absolute liability.¹ Defendants also moved for summary judgment on that issue of liability, and oppose plaintiffs' motion.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

There is no genuine issue with respect to the following facts. The United States and Greece are adherents to the Warsaw Convention, and TWA is a signatory to the Montreal Agreement. TWA is a common carrier engaged in transporting passengers between New York, New York and Athens, Greece.

Plaintiffs, or those in whose right they sue, were passengers in international transportation as defined by Warsaw Article 1(2) and ticketholders on TWA's Flight 881/5, scheduled to depart Athens at 3:30 P.M. Athens time.²

On August 5, 1973, at approximately 3:00 P.M. Athens time, passengers for TWA Flight 881/5, bound for New York, were assembled in the transit lounge of Hellenikon Airport in the vicinity of Gate 4 and were lining up for the hand baggage check and physical search conducted by the local Greek police prior to boarding. At 3:10 P.M., after approximately seven passengers had been screened and had passed through Gate 4 to buses which would transport passengers for this flight to the TWA airplane that was parked on the traffic apron, two or more terrorists commenced a violent attack on the passengers and others in the transit lounge. The terrorists threw three grenades in rapid succession which exploded in the vicinity of the lines of passengers which had formed for final processing for boarding the TWA flight. They followed this with several gunshots fired into the crowd at random. The terrorists took up a position behind a bar in the transit lounge and held 32 people as hostages. At approximately 5:20 P.M., after lengthy, tense and strident negotiations with the local officials, the terrorists surrendered and were arrested. The toll of this afternoon of terror: approximately 40 TWA passengers wounded; two TWA passengers died immediately and a third died several days later; a passenger of another airline died immediately; four TWA employees were injured; and an undetermined number of passengers and employees of other airlines were wounded.

Subsequent investigation revealed that the perpetrators were two members of the "Black September" organization, Shafik El Arid, also known as Mohamed Zehod, age 21, a native of Jordan, and Talaat Khantouran, also known as Hussein Talaat, age 21, also a native of Jordan. They were not TWA passengers. Following the all too common scenario for such incidents, in their negotiations following the attack, the terrorists sought an aircraft to take them to a "friendly country" and threatened to kill the hostages absent instant gratification. In later statements to the police and at their arraignment, the terrorists admitted that they planned to attack "Israel immigrant passengers on TWA flights going to Tel Aviv but by mistake struck when these other passengers were actually boarding the New York bound flight." They conceded their membership in the Black September terrorist organization and that they were acting pursuant to the instructions of that group.

Regardless of their stated purpose, an obvious goal of this frightful conduct is to seek international publicity at the expense of innocent victims unknown to the organization. The passengers on Flight 881/5 were for the most part United States citizens who had been vacationing in Greece.

The flight ultimately departed carrying only seven passengers who had completed their clearance before the incident, and were available, when the local police released the aircraft at 5:30 P.M. Athens time; this out of 82 passengers, including the plaintiffs, who had checked in for the flight.

Prior to the incident, plaintiffs, individually, had presented their tickets at the TWA checking desk located on the upper level of Hellenikon Airport. There, a TWA agent processed their tickets, issued boarding passes, assigned seats by number and issued baggage checks. Pursuant to TWA's instructions, plaintiffs proceeded through passport and currency control, also on the upper level, and thereafter to the transit lounge on the lower or field level to await the search of their persons and carry-on luggage. Once a passenger is in the lounge he may not leave that area unless he again clears passport and currency control on the upper level.

Before the incident, TWA announced that Flight 881 was ready for departure. Plaintiffs were told by TWA personnel to form a line at Gate 4 for the searches abovementioned. Plaintiffs along with the other passengers were then to proceed through the lounge to a bus, owned and operated by Olympic Airways, which was to take them approximately 100 yards across the traffic apron to their plane.³

Plaintiff Helen Rose had passed through the search area when the attack occurred. Aristedes and Constantine Day, escorted by a TWA passenger relations agent were told to proceed with this agent to the plane just before the incident took place. All other plaintiffs at Gate 4 were standing in line to be searched. In the Court's view of the case, these minor differences are not outcome determinative. The issue as to any plaintiff is not where his feet were planted when the killing began, but rather, in what activity was he engaged.

Article 17 of the Warsaw Convention provides that:

"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's position on this motion is that when the attack occurred plaintiffs were not "in the course of any of the operations of embarking", as that phrase is understood under the Convention, and therefore, as a matter of law, TWA is not liable. That the terrorist activities in the circumstances of this case constituted an "accident" is not disputed. The precise meaning of the terms of a statute or treaty is a question of law. See generally Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 314 N.E.2d 848 (1974) (Warsaw Convention).

The Warsaw Convention, formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (1934), was adopted in 1929 following several international conferences among the aeronautical powers. The industry was in infancy; Lindberg had flown the Atlantic in 1927 and Earhart in 1928. Substantial perils of all kinds were envisoned. Accordingly, capital was difficult to secure for this infant industry, because of the risks of loss attendant upon unlimited tort liability. To remedy this perceived difficulty, a plan to limit liability imposed on an airline for accidents was adopted, as the Warsaw Convention.

The Warsaw Convention "functions to redistribute the costs involved in air transportation." Husserl v. Swiss Air Transport Company, Ltd., 351 F.Supp. 702, 707 (S.D.N.Y.1972), aff'd per curiam, 485 F.2d 1240 (2d Cir. 1973). The carrier is in a position to negotiate with the owner or operator of an international air terminal to develop security mechanisms to protect air travellers from terrorist attack. Airport operators have demonstrated their ability and willingness to adapt to technological innovations made necessary by the high incidence of "skyjackings", and in cooperation with the airlines, similar protections might be developed to protect air passengers while they are on the ground. Airlines are also in a better position to be able to bear the losses incurred as a result of airport violence. Carriers might seek insurance coverage that would distribute the cost over a great number of carriers and, consequently, their passengers. See Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 368 F.Supp. 1098 (S.D.N. Y.1973), aff'd, 505 F.2d 989 (2d Cir. 1974). The airline industry in the United States is a regulated industry which has relatively uniform tariffs and fares, and, assuredly, such additional costs would be passed along to air passengers. Although the problem of terrorist attack was not anticipated by the drafters of the Convention, it is to be assumed that a treaty designed to deal with the hazards of modern air travel would be sufficiently flexible to encompass this most recent hazard.

The Convention essentially created a presumption of liability on the part of the air carrier for injury or death arising out of...