Constantine Evangelinos v. Trans World Airlines, Incorporated

550 F.2d 152
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 4, 1977
Docket75-1990
StatusPublished
Cited by46 cases

This text of 550 F.2d 152 (Constantine Evangelinos v. Trans World Airlines, Incorporated) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Constantine Evangelinos v. Trans World Airlines, Incorporated, 550 F.2d 152 (3d Cir. 1977).

Opinions

OPINION OF THE COURT

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 appeal1 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).2 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.3 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 elsewhere4 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,5 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 [154]*154the search procedure,6 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.7 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, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), an [155]*155identical ease arising out of the same incident.8 See also Leppo v. Trans World Airlines, Inc., Misc. (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. Gompagnie Nationale Air France, 386 F.2d 323, 337 (5th Cir. 1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (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,”

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550 F.2d 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constantine-evangelinos-v-trans-world-airlines-incorporated-ca3-1977.