APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-165).
Seitz, Chief Judge, and Van Dusen and Weis, Circuit Judges. Reargued in banc Nov. 4, 1976, before Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Seitz, Chief Judge, dissenting, with whom Aldisert and Gibbons, Circuit Judges join.
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 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).*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 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 of passengers were standing in those lines awaiting the search procedure,*fn6 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.*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 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, 50 L. Ed. 2d 172, 97 S. Ct. 246, 45 U.S.L.W. 3280 (1976), an identical case arising out of the same incident.*fn8 See also Leppo v. Trans World Airlines, 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 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, 20 L. Ed. 2d 1363, 88 S. Ct. 2053 (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,"*fn8a 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.*fn9
Neither MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971), nor the French case of Mache v. Air France, Rev. Fr. Droit Aerien 343 (Cour d'Appel de Rouen 1967), aff'd. Rev. Fr. Droit Aerien 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.*fn10 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 transportation risks. Here, applying that test, we conclude that the plaintiffs were not located in a "safe place," removed from risks now inherent in air transportation.*fn10a To reach any other result 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.
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 Article 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 its argument, TWA directs our attention to the treaty making history of that Article. The pertinent history consists of debates that 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 travelers . . . 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, 67-84 (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 drafting a new article in conformity with the vote was then referred to a drafting committee and Article 17 in its present form emerged.
TWA contends that the rejection of the CITEJA draft demonstrates that the delegates intended to exclude from the period of liability the time during which passengers are inside air terminal buildings. We disagree. While the rejection of the CITEJA draft indisputably reflected an intent to restrict the expansive period of liability envisioned by Article 20, nothing in the debates indicates that the line was finally and unalterably drawn at the walls of airline terminal buildings.*fn11 Surely if such an explicit line had been intended, the language of Article 17 would now reflect it. Moreover, the debates indicate confusion among the delegates themselves as to the meaning of the rejection of the CITEJA draft. Minutes at 83-84.*fn12 We are, therefore, especially reluctant to draw conclusions which are not reflected in the work of a drafting committee that had the advantage of considering the debates contemporaneously.
The most that can be said is that the draftsmen rejected the concept of automatic liability (subject, of course, to the defenses provided elsewhere in the Convention) for all accidents within the limits of the departing or arrival aerodromes. Our conclusion that under certain circumstances there may be liability for ...