The opinion of the court was delivered by: SNYDER
Callioppi Evangelinos and her children, Constantine, Erma, Stella, and Mary Julia (Plaintiffs) purchased round trip air transportation reservations from Trans World Airlines, Inc., (TWA) from Pittsburgh, Pennsylvania through New York City to Athens, Greece, and return. While the Plaintiffs were awaiting to board return TWA Flight 881
in Athens in the boarding area, the peace and quiet of the scene was broken by a terrorist attack when two armed men threw hand grenades, followed by gunshots fired at random into the crowd. Then the attackers took up a position behind a bar in the Transit Lounge and held thirty-two people as hostages. At approximately 5:20 P.M., after nearly two hours of negotiation with local officials, the terrorists surrendered and were arrested. The toll that afternoon included forty TWA passengers wounded; two TWA passengers died immediately and a third 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. The Plaintiffs herein were severely wounded by shrapnel or bullets.
Suit was brought against TWA on absolute liability based upon the Warsaw Convention as modified by the Montreal Agreement, and alternatively for negligence.
The Plaintiffs have filed a Motion for Partial Summary Judgment on the issue of absolute liability. Defendant has also moved for Summary Judgment on that issue of liability and opposes Plaintiffs' Motion.
This Court has subject matter jurisdiction pursuant to 28 U.S.C § 1331.
There is no genuine issue with respect to the basic facts which underlie the incident. TWA was engaged in the international air transportation of passengers and personal property between New York City, New York, and Athens, Greece. Both the United States and Greece are signatories to the Warsaw Convention, more formally known as "A Convention for the Unification of Certain Rules Relating to International Transportation by Air",
and TWA is signatory to the Montreal Agreement,
more particularly discussed hereinafter.
On August 5, 1973, the Plaintiffs were driven to the Athens Airport by a relative and arrived at about 2:00 P.M. They reported to the check-in counter in the departure hall on the upper level, where their luggage was checked, ticket coupons were submitted and boarding passes were issued by TWA employees. They then proceeded to an area on the same level where their boarding passes and tickets
were checked and examined by the police and then they reported to passport and currency control where their passports were examined and stamped. They then proceeded down a set of stairs into the Transit Lounge on the lower level, entrance to which is restricted to passengers ticketed and scheduled to depart on international flights of the forty scheduled carriers operating out of the terminal and to other personnel, who are not passengers, needed to service the area. Gates 4 and 5 were normally used by TWA for their outgoing flights. The Transit Lounge was not partitioned into exclusive areas. The Plaintiffs went to the Transfer Desk in the Transit Lounge area where they obtained a seat assignment and then awaited the announcement of the boarding of their flight in order to report to Gate 4. At this Gate, there are two separate lines, one for males and one for females, where there is a handbag search and a physical search made by the Greek Police. There are tables for examination of hand luggage and behind the tables were located two booths for physical search of all persons intending to depart. After the search, passengers would proceed through double doors out of the Transit Lounge where they boarded buses for transportation to the aircraft stationed at some distance from Gate 4.
The Transfer Desk (where the seat assignments were handed out) was manned by TWA personnel, as well as employees of the other airlines that used the terminal. Two TWA Security Guards were stationed at Gate 4 as well as at least two passenger service personnel of TWA. After being physically searched, the passengers would have walked to two sets of exit doors which led from the Transit Lounge to a raised terrace attached to the terminal building. Two sets of stairs were located on the east side of the terrace leading to a waiting area where there was a bus operated by Olympic Airlines and intended to carry persons across the traffic apron a distance of approximately 250 meters to where the airplanes were parked for loading.
At the time of the attack, all eighty-nine passengers scheduled to board TWA Flight 881 had checked in and received their boarding passes. The Plaintiffs had completed the various steps required and began to queue up in two lines preparatory to proceeding through the hand baggage and physical searches. At the same time, there was being prepared, Flight 806 destined for Tel Aviv, and the Tel Aviv passengers were taken out of the Gate 4 lineup (the electrically controlled sign having erroneously shown Flight 806-Tel Aviv instead of Flight 881-New York).
These passengers were then taken through Gate 5 where Swiss Air had just completed boarding of another flight.
Approximately seven Flight 881 passengers had departed through Gate 4, exited the Transit Lounge, and had either boarded or were about to board the bus previously referred to. The great majority of the eighty-nine scheduled passengers for Flight 881 were in line in front of the tables at Gate 4 at the time of the incident. The Plaintiffs were injured while being queued up in line in front of Gate 4 while waiting to be searched.
In statements made later to the police, the terrorists admitted that they had planned to attack "Israel immigrant passengers on TWA Flights going to Tel Aviv, but by mistake struck when the passengers were actually boarding the New York bound flight." They acknowledged membership in a Black September Terrorist Organization and were seeking international publicity.
The flight finally departed for New York carrying only the seven passengers who had completed clearance before the incident and were available when the local police released the aircraft at 5:30 P.M. Athens time.
(49 Stat. 3000, 49 U.S.C. § 1502 (Note))
In 1934, the United States became a party to the Warsaw Convention, a treaty subsequently signed by one hundred and seven nations, applying to "all international transportation of persons . . . performed by aircraft for hire. . ."
"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 supplied).
Article 22 of the Warsaw Convention limited damages to the maximum amount of $8,300 per passenger, thus limiting the amount of recovery that an injured or wounded passenger could secure on an international flight.
On November 15, 1965, the United States formally denounced the Warsaw Convention because of its dissatisfaction with the damage limitation of $8,300, feeling this was unduly prejudicial to American citizens travelling abroad on international flights.
Cancellation of United States' participation was to take effect May 15, 1966, but one day before that time the United States withdrew its notice of cancellation as a result of numerous meetings which resulted in an increased limit of liability and was known as the Montreal Agreement. This Agreement between the air carriers, which was signed by TWA and approved ...