Maugnie v. Compagnie Nationale Air France, 74-2672

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation549 F.2d 1256
Docket NumberNo. 74-2672,74-2672
PartiesSimone MAUGNIE, Plaintiff-Appellant, v. COMPAGNIE NATIONALE AIR FRANCE, Defendant-Appellee.
Decision Date19 January 1977

Page 1256

549 F.2d 1256
39 A.L.R.Fed. 440
Simone MAUGNIE, Plaintiff-Appellant,
No. 74-2672.
United States Court of Appeals,
Ninth Circuit.
Jan. 19, 1977.

Page 1257

Albert S. Golbert (argued), Los Angeles, Cal., for plaintiff-appellant.

Alexander Cobb (argued), Los Angeles, Cal., for defendant-appellee.

Before DUNIWAY and WALLACE, Circuit Judges, and RICHEY, * District Judge.

RICHEY, District Judge:

On this appeal we are required to interpret the meaning of "disembarking" as used in Article 17 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the "Warsaw Convention"), 1 which provides as follows:

Article 17. 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 and disembarking (emphasis added).

Appellant contends that the district court erred in holding that her injury did not occur in the course of disembarking within the meaning of Article 17. Unpersuaded by appellant's arguments, we affirm.

The facts are not in dispute. In 1971 appellant contracted with Air France, an international air carrier, for flight from Los Angeles, California, to Paris, France, where she was to transfer to Swiss Air for flight to Geneva, Switzerland. When appellant reached Paris, she exited from the Air France plane and entered the Orly Airport terminal to make her Swiss Air connection. She proceeded down the only passenger corridor leading from the Air France gate to the main terminal area. In a hallway between the airline gate and the center of the terminal, appellant slipped and fell, incurring the injuries which gave rise to the complaint. On reviewing the facts, the district court concluded that "(s)ince at the time of her accident, plaintiff had deplaned the Air France aircraft, had reached a safe point inside Orly Airport, and had proceeded a substantial distance en route to the Swiss Air departure area, the injuries complained of were not suffered 'on board the aircraft or in the course of any operations of . . . disembarking.' " C.R. 67. The court thereupon dismissed the complaint with prejudice, pursuant to stipulation of counsel.

The parties are in agreement that the Warsaw Convention was applicable to appellant's flight from Los Angeles to Paris. The sole dispute on this appeal is whether appellant's injury is comprehended by Article 17. To arrive at a workable definition of the term "in the course of . . . disembarking" as used in Article 17, we may properly look to the history and

Page 1258

purpose of the Convention and subsequent interpretations thereof. The scope of the Warsaw Convention is a matter of federal law and federal treaty interpretation, and must be determined from an examination of the "four corners of the treaty." American Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir. 1957); Husserl v. Swiss Air Transport Co., Ltd., 388 F.Supp. 1238, 1249 (S.D.N.Y.1975). Moreover, it is well established that treaty interpretation involves a consideration of legislative history and the intent of the contracting parties. Choctaw Nation v. United States, 318 U.S. 423, 431-432, 63 S.Ct. 672, 87 L.Ed. 877 (1943); Day v. Trans World Airlines, Inc.,528 F.2d 31, 35-36 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976); Block v. Compagnie Nationale Air France, 386 F.2d 323, 336-338 (5th Cir. 1967); Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 314 N.E.2d 848, 854 (1974). 2

The Convention was drafted in the late 1920's when the international air transportation industry was in its beginning stages. In order to provide a favorable environment for the industry's growth, various sovereignties agreed to create a uniform body of law governing the rights and responsibilities of passengers and air carriers in international air transportation. See Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 499-500 (1967); Block v. Compagnie Nationale Air France, supra, at 326-351, and authorities cited therein. The drafters of the treaty proposed to limit liability for injuries caused by air accidents and, as an offset, proposed a presumption of liability on the part of the air carrier. As originally drawn, the Convention established a presumption of liability with a liability limitation of $8,300 per passenger for injuries comprehended by Article 17. See Articles 20, 22 and 23. 3

In 1965 the United States formally denounced the Warsaw Convention because of the low limitation on damages. 4 Notice of denunciation was withdrawn, however, on the signing of the interim Montreal Agreement. The Agreement, approved by the United States through its Civil Aeronautics Board, 5 established an increased liability limit of $75,000 per passenger for international air transport involving a location within the United States. Additionally, the Agreement imposed absolute liability on air

Page 1259

carriers, thus eliminating the defense of due care set forth in Article 20(1). 6

Today the Convention functions to protect passengers from the hazards of air travel and also spreads the accident cost of air transportation among all passengers. Day v. Trans World Airlines, Inc., supra, 528 F.2d at 36. Taking a broad view of the term "accident," courts generally have extended air carrier liability to include injuries resulting from such modern air hazards as hijacking and terrorist attacks. Evangelinos v. Trans World Airlines, Inc., Civil No. 74-165 (3d Cir., filed May 4, 1976); Day v. Trans World Airlines, Inc., supra; Husserl v. Swiss Air Transport Co., Ltd., 351 F.Supp. 702 (S.D.N.Y.1972), aff'd 485 F.2d 1240 (2d Cir. 1973), In re Tel Aviv, 405 F.Supp. 154 (D.P.R.1975); Burnett v. Trans World Airlines, Inc., 368 F.Supp. 1152 (D.N.Mex.1973); but see Hernandez v. Air France, 545 F.2d 279, at 284 (1st Cir. 1976). However, the courts have not been uniform in construing "in the course of . . . embarking or disembarking" as used in Article 17, due perhaps to the ambiguous history of the Convention and the changes in air transportation technology since the original drafting.

In construing "disembarking," several courts have interpreted Article 17 as defining Warsaw coverage primarily by location of the passenger. In MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1970), upon which the district court herein relied, injuries sustained by a passenger while awaiting her suitcase in defendant airline's baggage area were held to be outside the scope of the Convention. Relying on the ordinary meaning of the words of the treaty, the First Circuit reasoned 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 the terminal, even though he may remain in the status of a passenger of the carrier while inside the building." 439 F.2d at 1405.

Additionally, the court noted that the most important purpose of the Convention was to protect air carriers from "the crushing consequences of a catastrophic accident . . . . Neither the economic rationale for liability limits, nor the rationale for the shift in the burden of proof, applies to accidents which are far removed from the operation of the aircraft." 439 F.2d at 1405.

The First Circuit reaffirmed the MacDonald decision in Hernandez v. Air France, supra, and at the same time indicated its willingness to consider factors other than location of passenger in interpreting Article 17. There the issue was whether Article 17 comprehended passenger injuries incurred in a terrorist attack while passengers were waiting in the baggage retrieval area of the air terminal. Applying the analysis utilized in Day and Evangelinos, discussed infra, the court considered the location of the passengers and, additionally, the nature of the passengers' activity and whether the passengers were under the control of the carrier at the time of injury. The court found that application of those criteria required the conclusion that the Hernandez plaintiffs should not recover under the Warsaw Convention.

While recognizing that the "tripartite test of Day-Evangelinos " might be useful for close cases, the court preferred an interpretation of Article 17 which placed at least initial emphasis on physical location of the passengers. On reviewing the legislative history of the Convention, the court was persuaded that the Convention delegates intended "embarkation and disembarkation" to mean "essentially the physical activity of entering or exiting from an aircraft." 545 F.2d at 283-284. Moreover, the court was reluctant to expand air carrier

Page 1260

liability to cover all acts of in-terminal terrorism, since the risk of such random violence was deemed not a risk inherent in air travel. The court concluded that the process of disembarking was completed by the time the passengers had left the aircraft and its immediate vicinity, were inside the terminal and were no longer acting at the direction of the carrier.

In re Tel Aviv, supra, also involved a terrorist attack on passengers who had deplaned and were waiting...

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