The Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking) was done at the Hague on Dec. 16, 1970 (TIAS 7192; 22 UST 1641; entered into force for the United States Oct. 14, 1971).

The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Sabotage) was done at Montreal on Sept. 23, 1971 (TIAS 7570; 24 UNTS 564; entered into force for the United States on Jan. 26, 1973).

For Annex 17 to the Convention on International Civil Aviation done at Chicago on Dec. 17, 1944 (TIAS 1591; 61 Stat. 1180; 3 Bevans 944; 15 UNTS 295; entered into force for the United States on Apr. 4, 1947), see International Standards and Recommended Practices: Security Safeguarding international civil aviation against acts of unlawful interference, adopted by the Council of the International Civil Aviation Organization on Mar. 22, 1974 (International Civil Aviation Organization, Montreal, Aug. 1974).

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Private Air Law

Jurisdiction

Warsaw Convention

In Maugnie v. Compagnie Nationale Air France, 549 F. 2d 1256 (1977), cert. denied, 45 Law Week 3801 (1977), the U.S. Court of Appeals for the Ninth Circuit, Mary Ann Richey, District Judge sitting by designation, affirmed a U.S. district court's denial of a claim for compensation under the Convention for the Unification of Certain Rules relating to International Transportation by Air, concluded at Warsaw on October 12, 1929 (the Warsaw Convention) (TS 876, 49 Stat. 3000; 2 Bevans 983; 137 LNTS 11; entered into force for the United States October 29, 1934), for personal injuries sustained by the appellant who slipped and fell after she had deplaned and was passing through a passenger corridor from an air carrier's gate to the main area of an airline terminal. In its January 19, 1977, opinion, the Court found that the injuries complained of were not suffered "on board the aircraft or in the course of any operation of... disembarking" within the meaning of that phrase in article 17 of the Warsaw Convention. In arriving at its decision, the Court analyzed the legislative history of the Warsaw Convention, the locationof-the-passenger test of MacDonald v. Air Canada, 439 F. 2d 1402 (1st Cir. 1971) and the tripartite test of Day v. Trans World Airlines, Inc., 528 F. 2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L. Ed. 2d 172 (1976) and Evangelinos v. Trans World Airlines, Inc. 550 F. 2d 152 (3rd Cir., filed May 4, 1976), which considers "the location of the passengers and, additionally, the nature of the passengers' activity and whether the passengers were under the control of the carriers at the time of injury." 549 F. 2d at 1259. Article 17 of the Warsaw Convention was quoted by the Court 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).

Id. 1257.

The facts of the case were summarized as follows:

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.'

549 F.2d 1257 (1977).

The Court relied upon the case of In re Tel Aviv, 405 F. Sunn 154 (D.P.R. 1975) to analyze the actions of the Warsaw Convention delegates and the location-of-the-passenger test in MacDonald:

Endorsing a test based primarily on physical location of passengers, the district court held that the Convention did not apply. In the court's view, the legislative history of the Convention made clear that the delegates to the Convention intended to exclude from coverage accidents occurring inside an airport terminal building. The court noted that the Warsaw Convention delegates specifically rejected a proposal from the Comité International Technique d'Experts Juridiques Aériens (CITEJA) which would have made the carrier liable from the time travelers, goods, or baggage first enter the airport of departure to the moment when they leave the airport of destination. 405 F. Supp. at 157, citing from Minutes, Second International Conference on Private Aeronautic Law, October 4-12, 1929, Warsaw (R. Horner and D. Legrez, transl. 1975) (hereinafter Minutes). The court concluded that the MacDonald test was appropriate :

[T]he intent of the Warsaw Conference in rejecting the CITEJA draft and in declining to impose in article 17 the same extent of car

7

rier liability for passengers as that provided in article 18 for goods and baggage was clearly to exclude liability as to passengers for accidents which occur after the passenger "has reached a safe point inside the terminal," and "which are far removed from the operation of the aircraft." (Citation omitted.) 405 F. Supp. at 157.

549 F.2d 1260. Footnote 7, which referred to art. 18 of the Warsaw Convention, follows:

7. Article 18 provides broad coverage for goods and baggage: “(1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. (2) The transportation by air within the meaning of the preceding paragraph shall comprise the period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever."

In denying the appellant's claim, the Court rejected sole reliance upon the location-of-the passenger test:

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[W]e find that a rule based solely on location of passengers is not in keeping with modern air transportation technology and ignores the advent of the mobile boarding corridors utilized by many modern air terminals. Today the expandable boarding units have eliminated to a great extent the need for embarkation and disembarkation outside the terminal building. Thus, determining whether passengers were inside or outside the airport terminal at the time of injury should not end the analysis. Further, we note that some commentators have concluded that "control" is the decisive factor. Shawcross and Beaumont, Air Law 441-442 (3d Ed. 1966); Matte, Traite de Droit Aerien-Aeronautique, 404-405 (1964) (cited in Day, 528 F.2d at 37 n. 17.)

In short, since the Convention drafters did not draw a clear line, this Court is also reluctant to formulate an inflexible rule. Rather, we prefer an approach which requires an assessment of the total circumstances surrounding a passenger's injuries, viewed against the background of the intended meaning of article 17. Location of the passenger is but one of several factors to be considered.

However, even under the more flexible interpretation of the language of article 17, appellant's claim does not come within the scope of the Convention. Appellant's situation contrasts sharply with the status of the passengers in Day and Evangelinos. There the passengers had obtained their boarding passes and were standing in line at the departure gate, waiting to be searched immediately before boarding. On those facts, it was reasonable for the courts to conclude that the travelers were involved in embarkation operations. Appellant, on the other hand, had deplaned and was heading to the Swiss Air gate to make her connecting flight to Geneva at the time of injury. She had proceeded through a boarding lounge and into a common passenger corridor of Orly Airport which was neither owned nor leased by Air France. Furthermore, she was acting

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at her own direction and was no longer under the "control" of Air France. Under these circumstances, we find that appellant had completed disembarkation operations within the meaning of article

17.

Id. 1261-1262. [Footnote omitted.]

In a concurring opinion, Circuit Judge J. Clifford Wallace stated that the result in this case would be the same under the location-of-the-passenger test or the tripartite test, that there is no necessity to resolve this question in this case, but that he would choose the MacDonald test if forced to do so.

The Court quoted articles 20, 22, and 23 of the Warsaw Convention as follows:

Article 20 provides in pertinent part: “(1) The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."

Article 22 provides in pertinent part: "(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs."

Article 23 provides: "Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this convention shall be null and void, but the nullity of any such provision shall not involve the nullity of the whole contract, which shall remain subject to the provisions of this convention."

Id. 1258 n. 3.

Liability of Carrier

On July 20, 1977, the Civil Aeronautics Board (CAB) approved a plan submitted by the Air Transport Association providing for supplemental compensation of $200,000 above the airline liability proposed in Montreal Protocols number 3 and 4 to the Warsaw Convention, pending before the U.S. Senate for advice and consent to ratification. The liability of carriers under the plan would be increased under the plan from the prevailing coverage up to $75,000, including legal fees, to approximately $117,000 if these two protocols enter into force. Montreal Protocol number 3 is entitled Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as Amended by the Protocols done at The Hague on September 28, 1955, and at Guatemala City, March 8, 1971. Montreal Protocol number 4 was concluded to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as Amended by the Protocol done at The Hague on September 8, 1955.

The plan, which would become effective after 30 nations ratify the protocols, was contained in an agreement submitted to the CAB by the Air Transport Association, a U.S. airline trade association. The agreement would establish a plan under which the Prudential Insurance Company of America would provide to passengers coverage of

up to $200,000 for death or injury incurred during international air transportation. The cost of the plan would be financed by a surcharge of two dollars for each ticket.

In approving the plan, the CAB indicated that it was not the sole means of recovery for claimants but "an effort to provide the type and amount of coverage the U.S. Government feels necessary to meet the needs of the international passengers under a system of absolute liability." The CAB pointed out that those passengers wanting insurance that requires only proof of liability are still free to purchase such coverage. Implementation of the plan would include a notice with all tickets reminding passengers of the option to purchase standard airline

insurance.

CAB Release 77-128 (July 21, 1977).

The Warsaw Convention for the Unification of Certain Rules relating to International Transportation by Air, with Additional Protocol was concluded on Oct. 12, 1929 (TS 876; 49 Stat. 3000; 2 Bevans 983; 137 LNTS 11; entered into force for the United States on Oct. 29, 1934, subject to a reservation).

Liability of Employees of Carrier

In Reed v. Wiser, 555 F. 2d 1079 (1977), the U.S. Court of Appeals for the Second Circuit held that the personal representatives, heirs, and next of kin of nine airline passengers killed when a bomb on board an airplane exploded could not recover from the air carrier's employees, or from the carrier and its employees together, a greater sum than that recoverable in a suit against the carrier itself due to the limits imposed by the Warsaw Convention for the Unification of Certain Rules relating to International Transportation by Air, with additional Protocol, concluded on October 12, 1929 (TS 876; 49 Stat. 3000; 2 Bevans 983; 137 LNTS 11; entered into force for the United States October 29, 1934). The court of appeals, in an opinion by Circuit Judge Walter R. Mansfield, reversed a district court decision which held that the limitation of liability provisions of the Warsaw Convention did not apply to employees or agents of the carrier. In arriving at its decision, the court of appeals relied, inter alia, on statements of intention by drafters of the Warsaw Convention, the underlying purposes of the Convention, and the need for a uniform rule governing the limits of employee liability.

Excerpts from Circuit Judge Mansfield's opinion follow:

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The most immediately relevant provisions of the Convention are article 17 (imposing on the carrier liability for the death or injury of a passenger arising from an accident sustained on an aircraft), article 22 (limiting the carrier's liability for each passenger to a fixed sum of francs) and article 24 (providing that any action for