Day v. Trans World Airlines, Inc.

• Decision Date: 22 December 1975
• Docket Number: D,No. 279,279
• Citation: 528 F.2d 31
• Parties: Aristedes A. DAY et al., Plaintiffs-Appellees, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant. Kate KERSEN, Individually and as Administratrix Ad Prosequendum of the Estate of Elbert Kersen, Deceased, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant. John SPIRIDAKIS et al., Plaintiffs-Appellees, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant. ocket 75--7341.
• Court: U.S. Court of Appeals — Second Circuit

Page 31

528 F.2d 31

36 A.L.R.Fed. 477

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

Kate KERSEN, Individually and as Administratrix Ad

Prosequendum of the Estate of Elbert Kersen, Deceased, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant.

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

No. 279, Docket 75--7341.

United States Court of Appeals Second Circuit.

Argued Dec. 3, 1975.

Decided Dec. 22, 1975.

John N. Romans, New York City (Chadbourne, Parke, Whiteside & Wolff, New York City, P. G. Pennoyer, Jr., Charles K. O'Neill, Hilton H. Stothers, Jr., New York City, of counsel), for appellant Trans World Airlines, Inc.

Nicolas Liakas, New York City (Mailman & Volin, New York City, of counsel), for appellees Aristedes A. Day and Constantine Day.

Melvin I. Friedman, New York City (Kriendler & Kriendler, New York City, Milton G. Sincoff and Alan J. Konigsberg, New York City, of counsel), for appellee Kate Kersen.

Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

On August 5, 1973, at Hellenikon Airport in Athens, Greece, two Palestinian terrorists hurled three grenades and unleashed a salvo of small-arms fire into a line of passengers preparing to board TWA Flight 881 to New York. Three people died and more than forty others were injured by this senseless act of violence.

The Warsaw Convention, ¹ as modified by the Montreal Agreement, ² provides, among other things, that an airline is absolutely liable, ³ to the extent of a maximum $75,000, for bodily injury sustained 'in the course of any of the operations of embarking.' ⁴ We are called upon to decide whether, under these provisions, TWA must provide indemnification for the deaths and injuries sustained at Athens. Our conclusion is that TWA must be held liable and that this determination accords with the plain meaning and the underlying purpose of the Warsaw provisions.

I.

It is necessary that we briefly describe the boarding procedures for international flights at Hellenikon Airport in August, 1973 as an aid to the resolution of the controversy before us. The prospective passenger, after entering the terminal, proceeded to the check-in counter of the airline whose aircraft he was to utilize. There, he presented his ticket, deposited his luggage, and paid the departure tax. In return, he was given a boarding pass and baggage check. The passenger then passed through Greek passport and currency control after which he descended a flight of stairs into the Transit Lounge. Only passengers waiting to board international flights were allowed inside the lounge area where they were required to remain until boarding. While the traveler waited for his flight to be called, he secured his seat assignment at the transfer desk located inside the lounge. When his flight was announced, he proceeded to the designated departure gate, where he and his hand baggage were searched by Greek policemen. The passenger then walked through the doors of the terminal building and crossed a short terrace outside. Finally, he boarded a bus which transported him to the waiting airplane.

The attack on the passengers of TWA Flight 881 occurred after they had gone through several of the required steps recited above and while they were standing in line at the departure gate, to which a TWA representative had summoned them, waiting to be searched. After seven passengers had been searched, the terrorists made their assault upon those standing in line.

As a result of this tragedy, several of the injured passengers and the executrix of a passenger who had died, brought suit against TWA in the Southern District of New York. ⁵ 28 U.S.C. §§ 1331, 1332. They claimed that the airline was liable under the Warsaw Convention for the injuries sustained and the death. After several cases were consolidated, the plaintiffs and the defendant moved for summary judgment on the issue of liability. Judge Brieant, in a thoughtful and thorough opinion, 393 F.Supp. 217 (S.D.N.Y.1975), granted the plaintiffs' motion. He also issued a certificate pursuant to 28 U.S.C. § 1292(b), and this interlocutory appeal followed.

II.

Article 17 of the Warsaw Convention 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. ⁶

Under the Montreal Agreement, liability for injuries described by Article 17 of the Warsaw Convention became absolute and the maximum damages were increased to $75,000. It is undisputed, moreover, that a terrorist attack is considered an 'accident' within the purview of these provisions. See Husserl v. Swiss Air Transport Co., 351 F.Supp. 702 (S.D.N.Y.1972), aff'd 485 F.2d 1240 (2d Cir. 1973, (per curiam). Thus, the sole issue we must resolve is whether the passengers sustained their injuries 'in the course of any of the operations of embarking or disembarking.'

TWA contended, both before Judge Brieant and on this appeal, that the application of Article 17 should be determined by reference only to the area where the accident occurred. Liability under the Convention should not attach, it urges, while the passenger is inside the terminal building. The very earliest time at which liability can commence, the appellant argues, is when the passenger steps through the terminal gate. Judge Brieant, however, believed that 'the issue . . . is not where (the plaintiff's) feet were planted when the killing began, but, rather, in what activity was he engaged.' 393 F.Supp. at 220. Applying a tripartite test based on activity (what the plaintiffs were doing), control (at whose direction) and location, the district judge determined that Article 17 covered the attack at the departure gate. We agree with this conclusion.

It seems elementary to us that the language employed in Article 17 must be the logical starting point. See Article 31(1), Vienna Convention on the Law of Treaties (hereinafter 'Vienna Convention'). 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, as did Judge Brieant. ⁷

It is clear that Article 17 does not define the period of time before passengers enter the interior of the airplane when the 'operations of embarking' commence. It is, nevertheless, appropriate to consider the activities of the plaintiffs in this case as falling within the purview of this somewhat cryptic phrase. The facts disclose that at the time of the terrorist attack, the plaintiffs had already surrendered their tickets, passed through passport control, and entered the area reserved exclusively for those about to depart on international flights. They were assembled at the departure gate, virtually ready to proceed to the aircraft. The passengers were not free agents roaming at will through the terminal. They were required to stand in line at the direction of TWA's agents for the purpose of undergoing a weapons search which was a prerequisite to boarding. Whether one looks to the passengers' activity (which was a condition to embarkation), to the restriction of their movements, to the imminence of boarding, or even to their position adjacent to the terminal gate, we are driven to the conclusion that the plaintiffs were 'in the course of embarking.' ⁸

Moreover, a relatively broad construction of Article 17, affording protection to the plaintiffs under the Warsaw liability umbrella, is in harmony with modern theories of accident cost allocation. The airlines are in a position to distribute among all passengers what would otherwise be a crushing burden upon those few unfortunate enough to become 'accident' victims. See G. Calabresi, The Costs of Accidents at 39--45 (1970) (hereinafter 'Calabresi'). Equally important, this interpretation fosters the goal of accident prevention. Cf. Union Oil Co. v. Oppen, 501 F.2d 558, 569--70 (9th Cir. 1974). The airlines, in marked contrast to individual passengers, are in a better posture to persuade, pressure or, if need be, compensate airport managers to adopt more stringent security measures against terrorist attacks. Cf. Calabresi at 150--52. If necessary, the airlines can hire their own security guards. And, the companies operate under circumstances more conducive to investigating the conditions at the airports they regularly serve than do their passengers. Moreover, they can better assess the probabilities of accidents, and balance the reduction in risk to be gained by any given preventive measure against its cost.

Finally, the administrative costs of the absolute liability system embodied in the Warsaw Convention, as modified by the Montreal Agreement, are dramatically lower than available alternatives. If Article 17 were not applicable, the passengers could recover--if at all--only by maintaining a costly suit in a foreign land against the operator of the airport. The expense and inconvenience of such litigation would be compounded by the need to prove fault and the requirements of extensive pretrial investigation, travel, and other factors too difficult to anticipate. Such litigation, moreover, would often unduly postpone payments urgently needed by the seriously injured victim or his surviving dependents. See Rosenberg and Sovern, Delay and Dynamics of Personal Injury Litigation, 59 Colum.L.Rev. 1115 (1959).

III.

TWA does not seriously challenge the validity of these textual and policy arguments in favor of extending coverage under the Warsaw Convention to...