741 F. Supp. 441 (1990) | Cited 0 times | S.D. New York | July 3, 1990


Defendant Scandinavian Airlines System ("SAS") moves thisCourt pursuant to Fed. R.Civ.P. 56 for summary judgment ofplaintiffs' claim for liability under the Warsaw Convention onthe ground that plaintiff Tova Rabinowitz was not "in thecourse of embarking or disembarking" within the meaning ofArticle 17 of the Warsaw Convention when she allegedlysustained the injuries for which she seeks damages in thisaction. Plaintiffs cross move for summary judgment on thisclaim. Defendant further moves for summary judgment of thestate law claim of negligence on the ground that SAS did notown, operate, maintain or control the premises where plaintiffwas allegedly injured. For the reasons stated hereinafter,defendant's motions are granted and plaintiffs' cross motion isdenied.


On September 23 and 24, 1989 plaintiffs Tova Rabinowitz andBaruch Rabinowitz were passengers on SAS Flight 914 travelingfrom New York to Moscow, with a short layover in Copenhagen,Denmark. Plaintiffs' flight arrived at Copenhagen KastrupAirport on September 24, 1989 at approximately 9:25 a.m.Copenhagen time. Plaintiffs' connecting SAS Flight 730 wasscheduled to depart for Moscow at 11:20 a.m. Copenhagen time.

Plaintiffs claim that upon arrival at Copenhagen KastrupAirport, they asked SAS employees to direct them toward thegate of their connecting SAS flight. Plaintiffs then proceeded,as allegedly directed, from gate 40 in Concourse C of theairport terminal building, at which they had arrived, to gate26 in Concourse B, where their connecting flight was departing,by way of a moving sidewalk, on which Tova Rabinowitz("plaintiff") claims her foot became caught at approximately9:30 Copenhagen time. After she was attended to by Copenhagenairport personnel for approximately one-half hour, plaintiffscontinued to gate 26 where they boarded SAS Flight 730 anddeparted for Moscow at 11:20 a.m.


I. The Standard for Summary Judgment

A party seeking summary judgment must demonstrate that "thereis no genuine issue as to any material fact." Fed.R. Civ.P.56(c); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d762 (1987); see Celotex Corp. v. Catrett, 477 U.S. 317, 106S.Ct. 2548, 91 L.Ed.2d 265(1986). "When the moving party has carried its burden underRule 56(c), its opponent must do more than simply show thatthere is some metaphysical doubt as to the material facts."Matsushita Electrical Industrial Co. v. Zenith Radio Corp.,475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Itmust establish that there is a "genuine issue for trial." Id.at 587, 106 S.Ct. at 1356. "In considering the motion, thecourt's responsibility is not to resolve disputed issues offact but to assess whether there are any factual issues to betried, while resolving ambiguities and drawing reasonableinferences against the moving party." Knight, 804 F.2d at 11.The inquiry under a motion for summary judgment is thus thesame as that under a motion for a directed verdict: "whetherthe evidence presents a sufficient disagreement to requiresubmission to a jury or whether it is so one-sided that oneparty must prevail as a matter of law." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91L.Ed.2d 202 (1986).

Defendant's motion for summary judgment on plaintiffs' WarsawConvention claim is based on the contention that TovaRabinowitz was not in the process of embarking or disembarkingat the time of the incident and SAS is, therefore, not liableto plaintiffs under Article 17 of the Warsaw Convention.1Defendant further moves for summary judgment on plaintiffs'negligence claim on the ground that SAS did not own, operate,maintain or control the area where plaintiff was allegedlyinjured.

II. Claim under the Warsaw Convention

The application of the Warsaw Convention to any damages claimis determined by Article 1 and the transportation contractwhich, in the transportation of passengers, is the passengerticket. Article 1 includes within the scope of the WarsawConvention's application "all international transportation ofpersons, baggage, or goods performed by aircraft for hire." 49Stat. 3014. Article 1(2) of the Warsaw Convention defines"international transportation" as:

any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention.

40 Stat. 3014.

Where transportation is "international" as defined in Article1(2), the provisions of the Warsaw Convention apply andautomatically govern the rights of the parties to an action fordamages. Benjamins v. British European Airways, 572 F.2d 913(2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59L.Ed.2d 72 (1979). Because plaintiffs' contract oftransportation provided for travel that commenced andterminated in New York with stopping places in Copenhagen andMoscow,2 the provisions of the Warsaw Convention apply tothis action.

The basic provision of the Warsaw Convention dealing with theliability of an airline for personal injury of a passenger isArticle 17, which 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.

49 Stat. 3018. Under the Montreal Agreement,3 liability forinjuries described by Article 17 of the Warsaw Conventionbecame absolute and the maximum damages were increased to$75,000. The issue presently disputed by the parties is whetherTova Rabinowitz was in the process of "disembarking" when shesustained her injuries. This question of federal law, to bedecided on the facts of the case, Schmidkunz v. ScandinavianAirlines System, 628 F.2d 1205 (9th Cir. 1980); Curran v. AerLingus, 17 Avi.Cas. (CCH) ¶ 17,560 (S.D.N.Y. 1982), isappropriately considered upon a motion for summary judgment.Day v. Trans World Airlines, Inc., 393 F. Supp. 217, 220(S.D.N.Y.), aff'd, 528 F.2d 31, 33 (2d Cir. 1975), cert.denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976);Upton v. Iran National Airlines Corp., 450 F. Supp. 176, 177(S.D.N.Y. 1978), aff'd without opinion, 603 F.2d 215 (2d Cir.1979).

This language of Article 17 has been oft discussed and thescope of the terms is fairly well defined. In Day v. TransWorld 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), the SecondCircuit Court adopted a tripartite test to determine whenpassengers are deemed to be in the course of "embarking" withinthe meaning of Article 17. The considerations under thismulti-factored test include (1) the passenger's activity at thetime of the injury, (2) the passenger's location at the time ofthe injury and (3) under whose direction and control thepassenger was acting. Id. at 33. In the Day case, thepassengers were held to have satisfied this test because they:

had already surrendered their tickets, passed through passport control, and entered the area reserved exclusively for those about to depart on international flights. They were assembled at the departure gate, virtually ready to proceed to the aircraft. The passengers were not free agents roaming at will through the terminal. They were requested to stand in line at the direction of TWA's agents for the purpose of undergoing a weapons search which was a prerequisite to boarding. Whether one looks to the passenger's activity (which was a condition to embarkation), to the imminence of boarding, or even to their position adjacent to the terminal gate, we are driven to the conclusion that the plaintiffs were 'in the course of embarking.'

Day v. Trans World Airlines, Inc., 528 F.2d at 33-34.

The Day test has been consistently followed by courtsconsidering whether passengers were injured in the course ofembarking. See e.g. Buonocore v. Trans World Airlines, Inc.,900 F.2d 8 (2d Cir. 1990); Schmidkunz v. Scandinavian AirlinesSystem, 628 F.2d 1205 (9th Cir. 1980); Upton v. Iran NationalAirlines Corp., 450 F. Supp. 176 (S.D.N.Y. 1978), aff'd withoutopinion, 603 F.2d 215 (2d Cir. 1979); Evangelinos v. TransWorld Airlines, Inc., 550 F.2d 152 (3d Cir. 1977) (en banc);Baker v. Lansdell Protective Agency, Inc., 590 F. Supp. 165(S.D.N.Y. 1984). While several courts have similarly appliedthe Day test to a determination of whether passengers wereinjured in the course of disembarking, see Knoll v. Trans WorldAirlines, Inc., 610 F. Supp. 844 (D.C.Colo. 1985); Maugnie v.Compagnie Nationale Air France, 549 F.2d 1256 (9th Cir.), cert.denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977);Martinez Hernandez v. Air France, 545 F.2d 279 (1st Cir. 1976),cert. denied, 430 U.S. 950, 97 S.Ct. 1592, 51 L.Ed.2d 800(1977), other courts have interpreted "disembarking" primarilyby reference to the location of the passenger at the time ofinjury. See e.g., MacDonald v. Air Canada, 439 F.2d 1402 (1stCir. 1971); Felisima v. Trans World Airlines, Inc., 13 Av.Cas.(CCH) ¶ 17,145 (S.D.N.Y. 1974).

Since Day, one district court within the Second Circuitconsidering a "disembarking" case applied the tripartite testwithout questioning its applicability, see Ricotta v. IberiaLineas Aereas de Espana 482 F. Supp. 497 (E.D.N.Y. 1979), aff'dwithout opinion, 633 F.2d 206 (2d Cir. 1980), while a second,noting the uncertainty ofwhich test to apply, concluded that because plaintiff was notin the process of disembarking under either test, it wasunnecessary to resolve the issue, see Curran v. Aer Lingus, 17Av.Cas. (CCH) ¶ 17,560 (S.D.N.Y. 1982).

In Day, the Second Circuit Court looked to the language ofthe Convention and its legislative history in determining thatsubjective consideration of the three factors best effectuatesthe drafters' intent to create a system of international airlaw flexible enough to keep pace with the evolutionary changesin civil air travel. Day at 33-38. Because this analysisapplies with equal force to both prongs of the single provision"in the course of any operations of embarking or disembarking,"this Court concludes that Day pertains equally to disembarkingcases. That the disembarking situation differs from that ofembarking is well accounted for in the tripartite test ofDay.4

In Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256(9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53L.Ed.2d 1072 (1977), a "disembarking" case, the plaintiff haddeplaned from an Air France aircraft and was proceeding to thegate of another carrier to make a connecting flight when sheslipped and fell in a passenger corridor leading to the mainarea of the terminal building. The Ninth Circuit Court,applying the Day test, held that the plaintiff was not injuredin the course of disembarking because she was acting under herown direction and was no longer under the direction or controlof Air France.

Similarly, in Martinez Hernandez v. Air France, 545 F.2d 279(1st Cir. 1976), cert. denied, 430 U.S. 950, 97 S.Ct. 1592, 51L.Ed.2d 800 (1977), the First Circuit Court held thatpassengers injured in a terrorist attack in the baggage area ofthe terminal building at Lod International Airport, Tel Aviv,Israel, were not in the course of disembarking at the time ofthe attack. The court noted that the passengers had alreadyemerged from the aircraft, descended the stairs from the planeto the ground, traveled approximately 1/3 to 1/2 mile from theaircraft to the terminal building, presented their passports tothe Israeli authorities and then passed through passportcontrol. The court stated that the control factor weighedheavily in favor of the carrier since the passengers were notsegregated into a group at the direction of any airlineemployee but were merely milling about awaiting their baggage,thus constituting free agents within the meaning of the Daydecision.

In Knoll v. Trans World Airlines, Inc., 610 F. Supp. 844(D.C.Colo. 1985), the district court held that a passenger whohad left the airplane, walked through the jet-way and walkedsome distance from the gate and fell in the terminal whileattempting to locate immigration, was not in the course ofdisembarking. The court noted that plaintiff was in a concourseof the airport, not under control of the airline agents andthat the plaintiff's "remaining activities were not conditionsimposed by the airlines for her disembarking." Id. at 847.

In Curran v. Aer Lingus, 17 Av.Cas. (CCH) ¶ 17,560 (S.D.N.Y.1982), the district court found that when plaintiff walkedthrough the gate area and boarded an escalator, he was notrestricted in any way by Aer Lingus. While plaintiff was not afreeagent roaming the airport at will, he was free to mix withinternational travelers who had not yet cleared customs androam at will through any part of the terminal reserved for suchtravelers. As such, the court ruled that plaintiff was not inthe course of disembarking when injured.5

Application of the three relevant factors set forth inDay — activity, location and control — compelled each ofthese courts to conclude that the passengers were not in theprocess of "disembarking" and therefore not covered by theprovisions of the Warsaw Convention. In fact, under either theDay tripartite test or the strict location test, "[t]he courtshave consistently refused to extend coverage of the WarsawConvention to injuries incurred within the terminal, except inthose cases in which plaintiffs were clearly under thedirection of the airlines." Knoll v. Trans World Airlines,Inc., 610 F. Supp. 844, 846 (D.C.Colo. 1985). Construing theaffidavits liberally in plaintiffs' favor, and applying thetripartite test which evaluates plaintiffs' location at thetime of accident, activity of plaintiffs and control by theairline, I, too, am obliged to find that plaintiffs were notembarking or disembarking when the incident occurred.

The facts are not heavily disputed. Plaintiff was allegedlyinjured while standing on a moving sidewalk located betweenConcourse C and Concourse B. Plaintiffs, after emerging fromtheir arriving aircraft, left the area of the arrival gate, andentered the public concourse area as they proceeded to the gateof their departing flight. Plaintiffs contend that because theaccident happened only five minutes after arrival, and no morethan 75-100 feet from the arriving gate, they were still withinthe area of disembarking. While plaintiffs in this case werecloser to the gate than those in most of the cases cited bydefendant, this factor is not determinative because plaintiffshad entered a public area, containing duty free shops,restaurants, restrooms and general seating areas not restrictedto SAS passengers.

Although plaintiffs were proceeding from the arrival gate inConcourse C to the departure gate in Concourse B, they wereproceeding at their own pace and under their own control. Theywere not required to be at the departure gate until fifteenminutes before the scheduled departure time, or 11:05.

No SAS personnel led or accompanied any of the arrivingpassengers through the airport to their departing flight. Whileplaintiffs could not leave the terminal building, they couldroam at will within the terminal for the almost two hourstopover time before their departing flight. They were free togo to a restroom, restaurant, bar or refreshment counter, toshop in the arcade, or to visit with other internationalpassengers in the waiting lounges.

Plaintiffs unpersuasively attempt to distinguish their caseon several grounds. First, plaintiffs allege that they werespecifically told by SAS employees to take the moving sidewalkto their connecting flight, unlike the cases cited by defendantin which the airlines exercised no control over the passengers.The Court disagrees with plaintiffs' premise thatemployee-given directions in response to a passenger's inquiryrequire the conclusion that plaintiffs were in the course ofdisembarking. In Knoll v. Trans World Airlines, Inc.,610 F. Supp. 844 (D.C.Colo. 1985), a case in which the plaintiffsimilarly slipped on a moving sidewalk, the Court refused toinfer liability based on the fact that TWA personnel haddirected her toward immigration and aided her when she fell,stating that she was not under the control of the airline'sagents at that point. The court noted that plaintiff's"remaining activities were not conditions imposed by theairline for disembarking." Id. at 847. Plaintiff had beenheaded toward immigration, a condition to entry apparentlyimposed by the host country, not a condition to disembarkingimposed by the airline.

More closely on point, the court in Curran v. Aer Lingus, 41Avi.Cas. (CCH) ¶ 17,560 (S.D.N.Y. 1982), found that althoughAer Lingus provided personnel to meet the flight and giveassistance to the arriving passengers, and posted a sign at thebase of the escalator directing passengers to ascend to reachcustoms, such personnel did not control or direct passengers'behavior. The court found that in "merely assist[ing]passengers off the plane and toward customs," Aer Lingus didnot control plaintiff's movements.

Here, too, plaintiff's allegation that an SAS employeedirected them toward the moving sidewalk does not rise to anylevel of control by SAS. Where the Curran court deemed there tobe no airline control in formal, customary practices ofdirecting and assisting passengers upon arrival, plaintiffs inthis case were plainly not under SAS control. Plaintiffs askedsomeone whom they believed to be an SAS employee in whichdirection to head for connection with their departing flightand that employee pointed the way. Such a responsiveinstruction does not satisfy the control factor set forth inDay.

Second, plaintiffs assert that none of the cases cited bydefendant involved passengers transferring between planes ofthe same carrier, predicating liability on the basis of acontinuous trip from New York to Moscow. Plaintiffs claim thatthey had no interest in stopping in Copenhagen. Whileplaintiffs may have believed their journey to be a continuoustrip, their tickets clearly show that they contracted with SASto stop in Copenhagen en route to Moscow. To adopt plaintiffs'position of continuous liability from the time a passengerembarks on the first of a series of connecting flights on thatsame airline until she disembarks from the final flight wouldbe to impose liability on the airline for any accident that mayoccur in airport terminals en route, in direct contravention ofthe explicit terms and purpose of Article 17. Plaintiffs'belief that their trip was continuous is simply irrelevant tothe statutory interpretation of Article 17.

Third, plaintiffs claim that SAS's position that onceplaintiffs exited safely from the aircraft in Copenhagen it isno longer responsible until they embark on their connectingflight is belied by the following statements made in SASadvertisements to the public:

If you travel SAS to Europe in the 90's, you'll be our customer all of the way. Not just in the air. You get off the plane in Copenhagen, but the way we look at things you're still our responsibility.

Plaintiffs' Memorandum in Opposition, Exhibits E and F. Again,a passenger's state of mind as to responsibility or duty, evenperhaps where based on defendant's representations, does notalter the analysis of the provisions of the Warsaw Convention.The Court therefore grants defendant's motion for summaryjudgment of plaintiffs' claim for liability under the WarsawConvention.

III. Negligence Claim

Because the Warsaw Convention claim has been dismissed, thisCourt no longer has pendent subject matter jurisdiction overplaintiffs' state law negligence claim. See United Mine Workersof America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d218 (1966). Although the parties are diverse, plaintiffs'complaint, demanding relief in the amount of $35,000, fails tomeet the minimum $50,000 amount in controversy required by28 U.S.C. § 1332 (Supp. 1990). Accordingly, plaintiffs' state lawclaim is dismissed without prejudice.6


For the reasons discussed above, defendant's motion forsummary judgment is granted as to the Warsaw Convention claimand the pendent state law claims are dismissed for lack ofjurisdiction. Plaintiffs' cross motion for summary judgmentis denied. This action is accordingly dismissed.


1. Convention for the Unification of Certain Rules Relatingto International Transportation by Air, Oct. 12, 1929, 49 Stat.3000, TS No. 876 (1934), reprinted in 49 U.S.C. § 1502 (1976)("Warsaw Convention").

2. Plaintiffs' tickets also included stopping places inZurich, Switzerland and Tel Aviv, Israel.

3. Agreement CAB 18900 (1966).

4. This Court considers only whether plaintiffs weredisembarking at the time of the incident. With two hours andpossibly a great distance to go, not to mention boarding andthe many attendant activities of embarking, plaintiffs clearlywere not within the course of embarking. See Buonocore v. TransWorld Airlines, Inc., 900 F.2d 8 (2d Cir. 1990) (Second CircuitCourt held that plaintiff, having checked in and received hisboarding pass but remaining in a public area nowhere near thedeparting gate, with two hours to freely roam the airport wasnot in the course of disembarking because he was in a publicarea, not imminently boarding, and without airlinesupervision); Schmidkunz v. Scandinavian Airlines System,628 F.2d 1205 (9th Cir. 1980) (Ninth Circuit Court held thatplaintiff arriving at Kastrup Airport in Copenhagen from UnitedStates who fell on moving sidewalk in terminal while proceedingto connecting SAS departure light was not in the course ofembarking because she was still within the common passengerarea of the terminal, was not at the gate imminently preparingto board and at the time was not under the direction of SASpersonnel).

5. In Curran, Judge Leval looked to Felisima v. Trans WorldAirlines, Inc., 13 Av.Cas. (CCH) ¶ 17,145 (S.D.N.Y. 1974), inwhich Judge Ward, under similar circumstances, applied thestrict location test. Nonetheless, Judge Leval concluded thatthe plaintiff had not satisfied that test or the more flexibletripartite test set forth in Day.

6. Because this Court lacks jurisdiction, the Court declinesto rule on the merits of defendant's summary judgment motionwith respect to the state law claims.

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