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Evangelinos V. Trans World Airlines: Aviation - Warsaw Convention - Liability of Airline Carrier

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Evangelinos V. Trans World Airlines: Aviation - Warsaw Convention - Liability of Airline Carrier Maryland Journal of International Law Volume 3 | Issue 1 Article 29 Evangelinos v. Trans World Airlines: Aviation - Warsaw Convention - Liability of Airline Carrier Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mjil Part of the International Law Commons, and the International Trade Commons Recommended Citation Evangelinos v. Trans World Airlines: Aviation - Warsaw Convention - Liability of Airline Carrier, 3 Md. J. Int'l L. 299 (1977). Available at: http://digitalcommons.law.umaryland.edu/mjil/vol3/iss1/29 This Recent Developments is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal of International Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. AVIATION - WARSAW CONVENTION - AIRLINE CAR- RIER IS LIABLE FOR INJURIES SUSTAINED BY PAS- SENGERS PRIOR TO BOARDING DURING TERRORIST ATTACK - Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977); Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975). In Evangelinos v. Trans World Airlines, Inc.' and Day v. Trans World Airlines, Inc.,2 the United States Courts of Appeals for the Third and Second Circuits held that under Article 17 of the Warsaw Convention,3 as modified by the Montreal Agreement of 1966, 4 an airline carrier was liable for the injuries suffered by its passengers prior to the actual boarding of the aircraft once those boarding procedures were substantially under way. The litigation in Day and Evangelinos arose out of the tragic events which took place at Hellenikon Airport in Athens, Greece on August 5, 1973.5 At approximately 3 p.m. on that day, 89 pas- sengers holding tickets for TWA Flight 881/5, scheduled to fly from Athens to New York, were awaiting final boarding instruc- tions6 in the airport transit lounge. After seven passengers had completed routine pre-boarding inspections, two Arab terrorists, 1. Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977). 2. Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975). 3. The official title of the Warsaw Convention is "The Convention for the Unification of Certain Rules Relating to International Transportation by Air." It is reproduced at 49 Stat. 3018. Article 17 provides that: '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." 4. Agreement CAB 18900, Approved, CAB Order No. E-23680, 31 Fed. Reg. 7302 (1966), reprinted in 49 U.S.C.A. § 1502 note. The Montreal Agreement provides in part that: "By this agreement, the parties thereto bind themselves to include in their tariffs, effective May 16, 1966, a special contract in accordance with Article 22(1) of the Convention . providing for a limit of liability for each passenger for death, wounding, or other bodily injury of $75,000 inclusive of legal fees .... The parties further agree to provide in their tariffs that the carrier shall not, with respect to any claim arising out of the death, injury, or wounding, or other bodily injury of a passenger, avail itself of any defense under Article 20(1) of the Convention." 5. Evangelinos v. TWA, 396 F. Supp. 95; Day v. TWA, 393 F. Supp. 217. 6. 393 F. Supp. at 221. See note 37 infra. (299) THE INTERNATIONAL TRADE LAW JOURNAL members of the infamous Black September terrorist organization, opened fire on the crowd, killing three and injuring an additional 7 forty persons. The surviving passengers and the personal representatives of the deceased victims of the Athens attack brought separate actions against TWA in the United States District Courts for the Western District of Pennsylvania" and the Southern District of New York.9 Plaintiffs sought to recover damages under the pro- visions of Article 17 of the Warsaw Convention."0 In both cases the plaintiffs and defendant TWA moved for summary judgment on the issue of liability." The plaintiffs contended that the airline was absolutely liable under the Convention; the defend- ants, on the other hand, argued that Article 17 of the Warsaw Convention was not applicable to the facts of the case on the grounds that even if an "accident" had transpired, liability could not attach because the damage sustained had not occurred on board the aircraft or "in the course of any of the operations of embarking or disembarking."'12 (emphasis added) The district courts in Evangelinos and Day, on the same facts, reached con- trary results. In Evangelinos v. TWA,' 3 Judge Snyder of the Western District of Pennsylvania granted the defendant's motion for summary judgment and dismissed the plaintiffs' complaint on the grounds that the plaintiffs were not "within the course of any of the operations of embarkation" and that as a result their in- juries were not incurred "as a result of an accident actionable under the Warsaw Convention."' 4 However, in Day v. TWA, 5 Judge Brieant of the Southern District of New York ruled in favor of the plaintiffs, finding that the plaintiffs were plainly engaged in embarkation inasmuch as they had completed five out of a total of the eleven steps in the airline's mandatory pre- boarding procedures at the time the accident occurred. 16 On 7. 396 F. Supp. at 96. 8. Id. at 95. 9. 393 F. Supp. 217. 10. Supra note 3. 11. TWA did not contend that the terrorist attack did not constitute an accident within the meaning of Article 17. 393 F. Supp. at 220. 12. Id. 13. 396 F. Supp. 95. 14. Id. at 103. 15. 393 F. Supp. 217. 16. Id. at 221. AVIATION - WARSAW CONVENTION appeal the Second Circuit Court of Appeals adopted the rationale of the lower court's opinion and affirmed the judgment for the plaintiffs.17 In Evangelinos v. Trans World Airlines, the district court granted the defendant's motion for summary judgment on the issue of liability. 8 In reaching its conclusion that the airline was not liable for the injuries suffered by its passengers as a result of the terrorist attack, the court relied extensively upon its inter- pretation of the "legislative" history of Article 17.1 The court discussed the divergent treatments accorded to baggage and passengers under the Warsaw Convention.20 In an early draft, the provisions concerning passengers and baggage were combined and coverage was extended to both passengers and baggage "from the time when the passengers, goods or baggage enter the airport of departure until the time when they exit from the airport of arrival." 21 The delegates rejected this proposal, and Draft Article 20 was split into what became Article 17 to cover passengers and Article 18 to cover baggage. Article 18 (2) retained the broad cov- erage of the Draft Article as it pertained to goods and baggage.22 Article 17 covered damages pertaining to passengers within a notably narrower sphere; that is, "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 disembark- ing."23 By distinguishing the terms of coverage extended to pas- sengers on the one hand and baggage on the other, it seems clear that the delegates intended to restrict the scope of carrier's liability for injuries suffered by passengers. The district court then scrutinized the discussions of several delegates to the Con- 17. 528 F.2d 31 (1975), cert. denied, 429 U.S. 890, 97 . Ct. 246 (1976). 18. 396 F. Supp. at 103 (1975). The court had subject matter jurisdiction under 28 U.S.C. § 1331 which provides: "(a) The district courts shall have original juris- diction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest or costs, and arises under the Constitution, laws, or treaties of the United States." 19. Id. at 100. The district court deems this to be a well-established practice repeating the dictum of Wisdom, C.J., in Block v. Compagnie Nationale Air France, 386 F.2d 323, 336 (1967) : "the determination in an American court of the meaning of an international convention drawn by continental jurists is hardly possible without considering the conception, parturition, and growth of the Convention." 20. Id. at 101. 21. Id. at 100. 22. 49 Stat. at 3018-19. 23. Id. 302 THE INTERNATIONAL TRADE LAW JOURNAL vention and concluded that the broadest interpretation conceived of by the delegates would have covered passengers from the time they left the terminal and entered the traffic apron. Moreover, the court found that the delegates intended to define limits 2based4 upon geographical factors, not on the passengers' activities. The Evangelinos decision of the district court rests on an interpretation of the Warsaw Convention which is in conformity with the earlier interpretations of the First Circuit. In In Re Tel Aviv, the carrier was held not liable for the injuries suffered by disembarking airline passengers who were attacked by ter- rorists after they had entered the terminal.2 5 The district court granted defendant carrier's motion for summary judgment on the ground that the plaintiff's post-flight activities did not fall within the scope of activities covered by the Warsaw Conven- tion.26 The passengers had completed their transportation by air since they were far removed from the operation of the air- craft.
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