Evangelinos v. Trans World Airlines, Inc., 75-1990

• Citation: 550 F.2d 152
• Decision Date: 04 February 1977
• Docket Number: No. 75-1990,75-1990
• Parties: Constantine EVANGELINOS et al., Appellants, v. TRANS WORLD AIRLINES, INCORPORATED.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 152

550 F.2d 152

Constantine EVANGELINOS et al., Appellants, v. TRANS WORLD AIRLINES, INCORPORATED.

No. 75-1990.

United States Court of Appeals, Third Circuit.

Argued Feb. 3, 1976.

Reheard Before the Court En Banc Nov. 4, 1976.

Decided Feb. 4, 1977.

Donald L. Very, Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for appellants.

Michael L. Magulick and Robert E. Wayman, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., for appellee; John N. Romans, P. G. Pennoyer, Jr., Charles K. O'Neill and Hilton H. Stothers, Jr., Chadbourne, Parke, Whiteside & Wolff, New York City, of counsel.

Argued Feb. 3, 1976.

Before SEITZ, Chief Judge, and VAN DUSEN and WEIS, Circuit Judges.

Reargued En Banc Nov. 4, 1976.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

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 appeal ¹ 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 elsewhere ⁴ 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 case 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. Compagnie 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 Mache v. Air France, Rev. Fr. Dr. Aer. 343 (Cour d'Appel de Rouen 1967), aff'd. Rev. Fr. Dr. Aer. 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 Mache 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; Mache 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...