Appeal from the United States District Court for the Western District of Pennsylvania.
Before Seitz, Chief Judge, and Van Dusen and Weis, Circuit Judges
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*fn1 concerns the liability of Trans World Airlined 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).*fn2 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.*fn3 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*fn4 and need not be repeated here. It is enough to state briefly that, at the time of the terrorist attack, plaintiffs had already completed all the steps necessary to boarding the aircraft except (1) undergoing physical and handbag searches,*fn5 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 were standing in those lines awaiting the search procedure,*fn6 two Palestinian terrorists fired bursts of automatic weapons fire in the general direction of the TWA queues and hurled hand grenades, which exploded in the vicinity.
Under the terms of the Warsaw Convention, as modified, TWA is absolutely liable to a limit of $75,000. per passenger if an incident which causes passenger injury falls within the ambit of Article 17 of the Convention.*fn7 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 terrorist 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), petition for cert. filed, 44 U.S.L.W. 3546 (U.S., Mar. 30, 1976), an identical case arising out of the same incident. See also Leppo v. Trans World Airlined, Inc., - Misc. 2d - (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 in this case fell within the purview of the phrase "the operations of embarking." We agree with the result reached in Day 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 (1968).
Giving the phrase "in the course of any of the operations of embarking" a common sense construction, we agree at the outset 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 delimits the period of liability prior to actual boarding. Nevertheless, for substantially the same reasons expressed in Day v. Trans World Airlined, supra, 528 F.2d at 33-34, we believe it is appropriate under all the facts and circumstances of this case to view the activity of undergoing pre-boarding searches as part of the "operations of embarking."*fn8
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 TWA's 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. 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.
Neither MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971), nor the French case of Mache v. Air France, Rev. Fr. Droit Arien 343 (Cour d'Appel de Rouen 1967), aff'd Rev. Fr. Droit Arien 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.*fn9 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 for form of terrorism, hijacking or sabotage - is today so closely associated with air transportation, we have little difficulty in concluding that the plaintiffs in this case were not located in a "safe place," far removed from risks now inherent in air transportation. We note that another terrorist attack on airline passengers recently occurred in Israel. See In re Tel Aviv, supra at note 9. To conclude otherwise would be to freeze the Warsaw Convention in its 1929 mold, when air travel was in its infancy, and to ignore current air travel procedures and the special risks created by the type of violence that resulted in this tragedy.*fn9
Nor are we convinced by TWA's principal argument that "the operations of embarking" can never occur within the physical confines of an air terminal building and that the Warsaw Convention is, therefore, inapplicable. Starting, as we must, with the actual language used in Article 17, we are struck by the fact that nothing in Artucle 17 suggests a limitation on the period of liability based strictly on the location of the "operations of embarking or disembarking." To the contrary, the contrast between the phrase "while on board the aircraft" and the phrase "in the course of any of the operations of embarking . . ." indicates that the draftsmen of Article 17 made a conscious choice to go beyond a mere location test. Further, adoption of the strict location test advanced by TWA could lead to differing results resting solely on the fortuity of where passengers are placed at the time of injury. In the absence of plain language compelling such a conclusion, we reject it.
Recognizing that nothing on the face of Article 17 supports their argument, TWA directs our attention to the treaty making history of that Article. The pertinent history consists of debates centered around Article 20 of the draft Convention prepared by a small committee of experts, Comite Internationale Technique d'Experts Juridique Aeriens (CITEJA), for consideration at Warsaw. Article 20 of the CITEJA draft provided in part:
"The period of carriage, for the application of the provisions of the present chapter [Liability of the Carrier] shall extend from the moment when the travellers . . . enter the aerodrome of departure, up to the moment when they leave the aerodrome of destination . . . ."
When the draft Article 20 came up for consideration, it provoked considerable debate between those who endorsed the expansive aerodrome-to-aerodrome period of liability and those who espoused a more restrictive view. Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw, 67-87 (R. Horner & D. Legrez transl. 1975) (hereinafter Minutes). Ultimately the principle of aerodrome-to-aerodrome liability was put to a vote and defeated. Minutes at 82-83. The problem of ...