International Aviation Law

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International Aviation LawDuration of Liability of Carrier under Warsaw Convention, Art 17 of the Warsaw Convention.

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The legal relationship between airlines and international passengers began with a landmark international treaty generally known as the Warsaw convention and was titled The Convention for Unification of Certain Rules Relating to International Transportation by Air. It was in the year 1929 when the aviation industry is in its infancy but it was felt that it held a great promise to afford a better, safer, faster and more comfortable journey thus the industry needed protection. So the members agreed to adopt the international treaty that would protect the international airlines from loss in the event of a crash as the crashes were very common then, secondly, promotion of availability of liability insurance to international airlines, thirdly, providing uniform terms and condition of transportation by air and fourthly, provide a framework of internationally uniform law to govern international airline crashes. It was made not only to set uniform standards for aviation industry but also careful consideration was given to safety issues so that the consumers and investors develop confidence in the aviation industry by imposing strict liability on international airlines for passenger injury or death, substantial limits defense that would otherwise be available to international airlines under the common law against claims for loss or destruction of cargo.[footnoteRef:2] [2: J. Scott Hamilton. Practical Aviation Law, Aviation Supplies and academic Inc, New Castle, Washington, 2011.]

The Warsaw convention establishes the rules of liability and limitation for International Air Carriage. It establishes the rules insuring adequate and reliable recovery for injury to person or property and to protect the infant airline industry.[footnoteRef:3] [3: Ibid.]

Before going into the liability we need have an idea of aviation safety. Safety means freedom from risks, it means state of being protected from or guarded against hurt or injury. But if aviation industry has to be safe then the industry will not exist at all.[footnoteRef:4] So certain standards needs to established to that passenger is comfortable as well as the industry also flourishes. Aviation safety means state of freedom from unacceptable risk of injury to persons or damage to aircraft and property. It may include imposition of particular safety standards, suspension license of unqualified pilot, rigorous training, grounding of civil aircraft in case of fault or crisis so its approach has to be multi disciplinary ranging from technical, economic, managerial as well as legal. Safety has a technical dimension but the legal aspect cannot be ignored. The legal aspect also includes policies which will affect the aviation industry as a whole and thus commerce of the world.[footnoteRef:5] [4: Jiefang Huang, Aviation safety through the rule of Law, Kluwar Law International, Netherlands, 2009.] [5: Jiefang Huang, Aviation safety through the rule of Law, Kluwar Law International, Netherlands, 2009.]

The liability of the carrier commences from the moment he accepts the goods for transportation to the period where it transports the goods until these are delivered at the place of the decided destination. So at the start to the end of the journey the carrier is liable for many things that can go wrong. These are discussed in different sections.[footnoteRef:6] [6: Raymond C Speciale, Fundamentals of Aviation law, Mc Graw Hill, 2006.]

Duration of Liability under Warsaw Convention.In case of duration of liability we still have to consider the length of time during which the carrier remains with the passengers. It begins from embarking to the flight to disembarking. Art 17 makes us liable for damage in the event of death or wounding of a passenger if there is an accident which caused damage which took place on board the aircraft or in the course of embarking and disembarking. Liability towards Passengers.Liability towards the passengers starts when the passenger is on a process of embarking. The carrier is 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.

Art 17 of Warsaw talks about liability of the carrier towards the passengers. There are four key words in this section and they are accident, bodily injury, and operation of embarking, disembarking. Five things need to be proved under Art 17. They are (1) Damage sustained is a result from (2) passengers death or bodily injury (3) caused by an accident (4) which occurs on board the aircraft (5) in the course of embarking or disembarking. Passenger.First we must understand who is a passenger. Art 1 makes the convention applicable to all international transportation of persons, luggage and goods. For Art 17 the passenger must be a live person. Art 1(2) indicates that the convention applies to persons with contract of carriage. The working crew is therefore exempted from the scope of the Convention. A passenger has a right to bring an action for bodily injury or wounding. If the passenger dies, his representative has the right to bring action against the carrier.[footnoteRef:7] [7: J. Scott Hamilton. Practical Aviation Law, Aviation Supplies and academic Inc, New Castle, Washington, 2011.]

What is an Accident on flight?Accident must lead to death or bodily injury. For this we need to understand what accident is. Accident has been defined as an unexpected and sudden event that takes place without foresight.[footnoteRef:8] So it can be understood that the event must be unexpected and unusual, which should then qualify as an accident which should lead to damage. Hijacking can be regarded as an accident which must lead to bodily injury to qualify under Art 17.[footnoteRef:9] In another incident a fellow passenger attacked another passenger. The court held that it does not qualify as an accident under Warsaw.[footnoteRef:10] The incident which should be unusual or unexpected had to be on board the aircraft and must be directly or indirectly caused by negligence or error of the crew or the cabin assistants. [8: DeMarines v. K.L.M. Royal Dutch Airlines, 14 Avi 18,212 (1977)] [9: Husserl v. Swissair, 13 Avi 17,603 (SDNY, 1975)] [10: Price v. British Airways, 23 Avi 18, 465 (1992)]

A passenger is struck by another passenger without provocation is not an accident as it has nothing to do with aircraft operation. So if two passengers starts fighting then carrier will not be liable but if the fight was caused by serving overdoes of alcohol then cabin assistants are liable and thus the carrier is liable. So a direct or indirect act of the crew or the cabin assistants is necessary. If a passenger wants to change his seat due to medical reasons but was not allowed and which lead to health problems in the future, will qualify as an accident and thus bodily injury. A passenger suffers from asthma was exposed to cigarette smoke. He suffered a severe asthma attack and dies as a result. The refusal by the cabin crew to reseat the passenger was a negligent inaction which will be termed as an accident leading to death thus will qualify under Art 17.[footnoteRef:11] If there is confiscation of medical bag which contained live saving drugs, then any damage resulting from not having it will be the responsibility of the carrier. The failure of the airline to comply with a health based request to ensure that the hand baggage travelled with the passenger was an event or happening within the plain meaning of those terms as explained by the supreme court in the Husain case. The event has to be unusual and unexpected. If the passengers were given repeated assurances that the medical hand baggage will not be taken from him or will not be delayed on arrival and if the bag is lost in transit then it qualifies as an accident. The unusual and unexpected event is external to the passengers as well as refusal of assistance by the ground staff or the cabin crew. So the action of the carrier must be linked to the death or bodily damage to the passenger. If the illness preexisted it will not matter as there was willful negligence and failure to comply with procedures on the part of the carrier in aggravating the illness considerably. If the seizure of the bag leads to the death then delay will not matter but the seizure must take place during the process of embarking. [footnoteRef:12] The carrier is responsible for orderly and necessary boarding procedure and if there no compliance with it then carrier will be liable. [11: Olympic Airways v Hussain, 2004 WL 329950] [12: Prescod v AMR American Airlines, 2004 US App. Lexis 17432]

Failure to remove the hypodermic needle from the cushion seat was an accident as it was the failure to perform the duty by the cabin crew and thus qualify as an accident.[footnoteRef:13] The simple act of not doing anything or remaining silent on behalf the cabin crew will be termed as an accident which thus leads to bodily injury. But if the passenger is not in good health and the flight has aggregated the symptoms then it wont qualify as an accident leading to bodily injury. An event is not an accident if it arose exclusively from passengers state of health. US courts narrowed the term accident by stating that an event was not an accident if it arose exclusively from the passengers state of health. The word extensively is important as it means that the accident was fully caused by the passengers state of health and not by the external influence or negligence of the ground staff during embarking or disembarking or by the cabin crew during the flight.[footnoteRef:14] [13: Waxman v C.I.S. Mexicana de Aviacion, New York, 1998; 12 F.Supp. 2nd 508] [14: Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International, Netherlands, 2000.]

The injury if caused by the changes done by the crew like some necessary changes in the operation of the flight which in normal, prudent, usual in the course of the journey will not be termed accident. So any bodily injury caused by that will not be termed as an accident leading to bodily injury.[footnoteRef:15] If a passengers hearing capacity is damaged due to negligent maintenance and the pressurization system of the aircraft, then the carrier will be liable as there was negligence on the part of the crew which lead to the bodily injury. But if it is found that the system had functioned properly then the passenger will not be liable for damages as the change in pressure in the cabin is normal as part of the flying in different altitudes.[footnoteRef:16] [15: Warshaw v TWA, 14 Avi 18,297 (1977)] [16: Air France v Saks, 18 Avi 18, 538]

So death or bodily injury must result from an accident and the accident must occur on boards the aircraft or during embarking or disembarking. Death may occur due to a casual accident which may not kill the passenger instantly but the passenger may have suffered injuries leading to death after few weeks. So damages can be awarded as there is a casual link as well as pre death pain. If a passenger with heart problem is not provided with a wheelchair during disembarking which led to a heart attack, then in that case accident was the failure of the carrier employees to provide the wheelchair which caused the bodily injury which is heart attack so it is compensable under Warsaw. Another point that needs to be noted is that there are many injuries that can happen while on board or during embarking or disembarking but are not compensable as there must be an accident to qualify it as bodily injury.Accident may be related with aircraft operation. A discussion of Air France v Saks is required. A passenger on an Air France flight Ms. Saks going from Paris to Los Angeles, felt severe pressure and pain in her left ear when the aircraft descended towards Los Angeles. Ms. Saks after disembarked continued to feel the pain but did not inform any Air France crewmember. She became permanently deaf in her left ear as later revealed by her doctor. As pressurization system had operated in a normal manner so Air France argued that it is not an accident within the meaning of Article 17 as the injury was caused by the normal operation of the pressurization system and therefore do not qualify as an accident. Definition of accident should be flexibly applied after assessment of all the circumstances surrounding a passengers injuries. The US Supreme Court held that liability under Article17 arises only if there is an unexpected or unusual event which caused injury to the passengers which is caused by or happening that is external to the passenger. Chain of causes must be proved in any injury and it is required that the passenger is able to prove that some link in the chain has led to unusual or unexpected event external to the passenger. Warsaw does not impose carrier liability for injuries that are not caused by an accident. The passenger has the burden to proving that the accident has unusual and unexpected. The Court held that the injury was not a product of a chain of events or causes. Moreover normal operation of an aircraft does not constitute an accident.[footnoteRef:17] [17: Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International, Netherlands, 2000.]

From here we can derive five points.1) Unusual and unexpected event,2) which should be external to the passenger.3) Flexibly applied in determining all circumstances.4) Chain of events leading to the injury thus the cause of the injury and not the injury alone.5) Warsaw does not impose absolute liability on the carrier.

Carrier should not be liable for most injuries, as long as they are unexpected or unusual. Carrier should not be liable for all damages. Carrier cannot be always held liable for any injury that befalls on a passenger without any causal connection between the damage and the operation of the aircraft. This is the reason why the passenger must insure themselves against all other risks that are not associated with the operation of the aircraft.

Question now arises what exactly in normal and expected operation of a carrier. Injury occurring due to the fault exclusively to the passenger so it will not be termed as an accident as it is not caused by the operation of the aircraft by personal causes. Accidents like injury due to intoxication can occur in any sphere of life and it would be absurd to hold the carrier liable. But if the intoxicated passenger falls on another passenger and injures him then it will be an accident. This is because it is the duty of the cabin crew to handle the matter and take necessary measures to avoid such occurrences by stop serving excess alcohol or changing the seat of fellow passenger if necessary. So operation of the aircraft not only includes technical matters but also the proper workings of the cabin crew. Injury due to some normal day to day activity will not be termed accident. A passenger is injured by tripping over another passengers shoes or hand luggage placed in the aisle during boarding is not an accident.[footnoteRef:18] A passenger placing hand luggage in the aisle during boarding is an expected normal event and if it causes injury by tripping on a passenger then it will be termed and an unusual event if Saks case is applied. So one must be careful that normal events leading to accident but not directly or indirectly related with the operation of the carrier should not qualify as an accident. Passengers own internal reaction to the usual, normal and expected and if the operation of the flight increases it then it will not be an accident. An event can become an accident through an act or omission by the carrier or its agents or servants. In the Tsevas v. Delta Airlines case a female passenger was sexually assaulted by a drunken passenger who sat next to her. Ms. Tsevas earlier asked the cabin crew that she should be seated elsewhere. The crew not only ignored her complaints but kept serving the intoxicated passenger with more alcohol. The court held that the sexual assault was an accident as it was caused by the over serving of alcohol and refusal to reseat her by the cabin crew which was casual to the accident. Moreover the accident is unexpected, unusual and external to the passenger which was caused by the service of the flight attendant. The service of the flight attendants is an integral part of the air travel and related with the operation of the aircraft. The airline was held liable.[footnoteRef:19] In another case Wallace v. Korean Air, a female passenger named Ms. Wallace was onboard Korean air travelling from Seoul to Los Angeles. It was an overnight flight and she was seated between two men. She was sexually assaulted by one of the men when the lights were switched off at night. She tried to stop him but ultimately had to hit the perpetrator and flee. She was seated later elsewhere. The assaulter was not served alcohol so there was no direct relation with the service of the flight attendants. The assaulter did not show any signs of being a sexual molester prior to the attack. The court held that it is an accident under sec 17 as it was connected with the operation of the aircraft. Here there is strict application of Saks but we must understand that sexual assault can occur in any mean of transportation and it is not a specific risk to air travel only. It is natural to be travelling on a public transportation when you are seated next to someone unknown to you. Dimmed light or unknown passenger cannot be a circumstances leading to the accident. A sudden and unexpected assault by between passengers has nothing to do with the operation of the aircraft and cannot qualify as an accident according to Article 17.[footnoteRef:20] There are some inherent defects in Warsaw when it comes to terrorist attacks as Warsaw is applicable to injuries sustained by passengers on an international flight when an accident happens. Convention does not apply to domestic flights or persons killed or injured on the ground. Moreover it does not cover the acts done leading to injury which is not connected with the operation of the flight. The acts that a carrier will be held responsible are those acts done by the employees of the carrier or have substantial connection to the carrier. Terrorist attack are linked with the third party how have no connection with the carrier.[footnoteRef:21] [18: Craig v. Compaigne Nationale Air France, 45 F.3d 435 (1994).] [19: Tsevas v. Delta Airlines, WL 767278, (1997)] [20: Wallace v. Korean Air, 214 F3d 293 (2000)] [21: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.]

US courts have held that terrorist attack is a part of air travel and air carrier should be held liable under Warsaw. If tort law is applied then carrier is definitely liable for such acts. Carrier is in a position to prevent such attack as it has an internal mechanism of safety to prevent such attack on board the aircraft. It also has the power to implement safety and security measures so if there is insufficiency is the safety measures leading to a terrorist attack then carrier will be held liable for such acts. In Haddad v. Air France case it was held that accident could not be restricted to mechanical and technical events on the carrier in case of a hijacking situation if the passenger is injured due to the accident of hijacking. The term accident needs to be extended to include unexpected actions of third parties during flight.[footnoteRef:22] [22: Haddad c. Air France 1982 RFDA 342]

What is bodily injury on flight?Bodily injury requires some proof of physical damage or impairment of the body of the passenger. So a broken arm, burns or broken leg does qualify. Mental injury if any like nervous breakdown or trauma must result from a bodily injury. As the area of mental injury is vast and cannot be proved like that of bodily injury so it is outside the scope of Warsaw. A natural ailment of passengers which may get aggravated in flight does not quality as bodily injury. Mental and emotional harm, psychic injuries, unaccompanied by physical injury is not compensable under Art 17.[footnoteRef:23] So mental injury must emanate from physical injury and the physical injury must be caused by an accident. [23: Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 478 (1978)]

As per art 17 three condition must be fulfilled when it comes to bodily injury. They are that bodily injury must be suffered by an accident on board the aircraft during embarking or disembarking. It is the advent of terrorist hijacking that the concept of emotional distress first came into the picture. So people started demanding compensation for mental trauma caused by terror even though they did not receive any physical injuries. So the question arose if Art 17 included mental trauma exclusively without physical injuries. In the case Burnett v. TWA a Trans World Airlines aircraft was hijacked on September 6 1970 and was forced to land in the dessert near Amman, Jordan.It is the advent of terrorist hijacking that the concept of emotional distress first came into the picture. So people started demanding compensation for mental trauma caused by terror even though they did not receive any physical injuries. So the question arose if Art 17 included mental trauma exclusively without physical injuries. In the case Burnett v. TWA a Trans World Airlines aircraft was hijacked on September 6 1970 and was forced to land in the dessert near Amman, Jordan. As per the French legal system lesion corporelle means bodily injury and lesion mental means mental injury and it distinguished then and considered them as mutually exclusive. Therefore mental anguish is not within the purview of Article 17.[footnoteRef:24] Courts gave a strict literal meaning, to the Article and denied recovery for emotional distress unaccompanied by physical injury. The carrier is liable for exclusive objective bodily injuries, caused by the psychic accident, and bodily injury flowing from accidents, but not mental trauma which have no connection with body or just behavioral manifestation of such mental trauma. Recovery is possible for mental trauma which is related with bodily injury and not those not related with bodily injury. The intention of the drafters were looked into in the case Husserl v. Swiss Air and the court held that the drafters of the convention did not intend to preclude recovery for any particular type of injury such as purely mental injuries thus should be compensable.[footnoteRef:25] [24: Burnett v. TWA, 368 F Supp 1152 (1973)] [25: Husserl v. Swiss Air, 388 F.Supp. 1238 (1975)]

On June 27, 1976 an Air France aircraft was hijacked. The hijackers held the passengers for several days at Entebbe Airport in Uganda before rescue could take place. The court in this case Air France v. Teichner held that recovery for mental trauma under Art 17 is permitted. The court analyzed the term lesion corporelle and held that when Warsaw convention was drafted, French tort law allowed damages for mental trauma so there is no need to believe that the convention intended to exclude mental recovery. The later agreements in the convention between the parties changed the meaning of Lesion corporelle to personal physical injury. This is because the aviation industry was at a very infant state so to protect the industry financially; mental injury was separated from physical injury so that the aviation industry is not over burdened with excess claims. Secondly medical science was not that advanced then to understand the deep relation between body and mind so mental injury could not be easily proved as compared to physical injury. But by 1970s it was developed to include mental injury as an important injury and aviation industry was developed at a stage to include mental injury to be recoverable. This helped the convention from becoming dated and seeing the changes in the international law such expanded meaning is necessary.[footnoteRef:26] [26: Air France v. Teichner, S & B Av R VII/141]

In Floyd v. Eastern Airlines court held that the translation of lesion corporelle[footnoteRef:27] lead to the meaning bodily injury but also means personal injury as this is how French legal system uses it if grammatically correct translation is used. Personal injury thus include mental trauma. Eastern Airlines flight on May 5, 1983 departed from Miami. Shortly afterwards it lost one of its engines due to low oil pressure. The flight crew decided to return to Miami international airport but lost two other engines. The passengers were informed that the plane would be ditched in the Atlantic Ocean. But afterwards the flight crew managed to restart the engine as managed to safely land in the airport. The court held that mental distress is recoverable but was later reversed.[footnoteRef:28] But there is a problem with the term lesion corporelle. It was not used in France in 1929 and the dictionary meaning was physical injury and it does not include mental trauma. The dictionary meaning has the same meaning as other legal systems. The US Supreme Court thus held that air carrier cannot be held liable for mental anguish unaccompanied by physical injury. This is because the convention was established to create uniformity in rules regarding air travel so its main purpose was to block hindrances which will increase if recovery of mental distress is allowed if unaccompanied with physical injury. Secondly the purpose was to foster growth in the aviation industry so recovery of damages based on mental injury alone can hinder the growth so psychic injury alone cannot be recovered. [27: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.] [28: Floyd v. Eastern Airlines, 872 F.2d 1462 (1989)]

The court in Kotsambasis v. Singapore Airlines held that Convention does not include purely psychological injury. Miss Kotsambasis sued the Singapore Airlines for mental trauma as its aircraft had to be landed in Athens airport due to engine problem. The passengers could not disembark the aircraft for several hours as no facilities were provided. This caused mental distress. Court held that bodily injury and lesion corporelle are same and both are ambiguous as to whether they refer to psychological injuries. Bodily injury was not intended to include purely psychological injuries.[footnoteRef:29] So for now recovery for emotional distress is allowed as long as it flows from bodily injury. [29: Kotsambasis v. Singapore Airlines, 148 ALR 498 (42 NSWLR 110)]

Physical manifestation of emotional and mental distress like cramps, nervousness, perspiration, sleeplessness, tension are not bodily injury but may qualify for compensation if it also caused bodily injury to the passenger. The physical or bodily injury must be the proximate cause of the mental injury. Recovery of weakness, nausea, cramps, malnutrition, diarrhea if directly resulted from the flight can be allowed.[footnoteRef:30] Courts can give compensation for mental injuries if it directly flows from physical injuries like medical evidence for chemical thus physical change in brain through medical test can qualify. In Kalish v. TWA case a passenger was trampled on by other passengers during emergency evacuation of the aircraft due to fire, can recover damages for mental trauma caused by physical injury that was caused.[footnoteRef:31] In Oparaji v. Virgin Atlantic Airways case a passenger was denied boarding at the entrance to the aircraft because it was thought that he had a fake passport but it was later proved that the passport was valid. But by then the flight was closed and the passenger had to make alternative travel arrangements which caused mental and emotional distress. The court held that it is an accident but did not lead to any physical injury thus will not qualify for compensation. The court did hold that there was emotional distress though it was unassociated with physical injury. Damages for emotional distress may be awarded where the emotional distress flows from or directly related to physical or bodily injury. Thus a physical injury caused mental trauma then it will be recoverable only. [30: Chendrimada v. Air India, 802 F. Supp. 1089, 1092 (1992)] [31: Kalish v. TWA, 14 Avi. 17, 936 (1977)]

Embarking..Disembarking.Concept on embarking and disembarking needs to be understood. Plaintiff after proving accident coupled with bodily injury must prove is that it occurred while he or she was on board the aircraft or "embarking" or "disembarking" within the meaning of the Warsaw Convention. The tests developed by Day v. Trans World Airlines, Inc and Evangelinos v. Trans World Airlines, Inc are followed when understanding the meaning of the terms "embarking" and "disembarking".[footnoteRef:32] [32: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

Embarking means when the passenger is in the process of boarding the flight. It depends on location of the passenger, activity of the passenger, control restriction and supervision of the air carrier over the activity of the passenger and proximity of time and location for departure. Embarking commences when a passenger is instructed to proceed to the bus for transportation to the aircraft. In Jeffries v. TWA case it was held by the court that there is a duty of the carrier to exercise reasonable care to prevent danger from vicious practices by the third party when the carrier has reasonable opportunity to prevent the danger. In this case passenger who were checked in were attacked by terrorists while waiting in line to be searched for boarding. The carrier had already announced the flight and asked passengers to report to the gate. The court held three factors are important.[footnoteRef:33] [33: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

1) Location of the accident2) Activity in which the passengers was engaged at the time of the accident3) Airlines control over the passengers at the time of the accident.So a loss of baggage during security search is covered by the convention which is undertaken by the airline agents. Whether an accident has occurred during the process of embarking or disembarking needs to be seen. Airlines do not operate the airports. So any accident that happens at the airport the airline will not be liable but the moment the airline agents gets control of the aircraft like the time when they start checking the boarding passes, they will be liable for anything that happens after that. Before that if any accident happens the airport authority will be liable. In Bibabcea c. Air France case the passenger fell when she was waiting in the international departure lounge. The court held that the airline is not liable as she has not yet commenced operation of embarking as the carriers control and the contract of transportation has not commenced. In Upton v. Iran National Airlines case the passenger has received the boarding pass and was seated in the public area when the airport roof collapsed. The court held that the airline is not liable as the passenger has not yet entered the operation of embarking because the passenger was free to leave the building and had not yet entered the controlled situation of the airline.[footnoteRef:34] [34: Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International, Netherlands, 2000.]

In Air France c. Nicoli case the passenger was struck by the motor vehicle owned by the airline as she was walking towards her airline. The court held that the airline is liable.[footnoteRef:35] [35: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

In 1973 Hellenikon airport in Athens there was a terrorist attack which left over forty injured and three passengers dead. In Athens airport the passengers were always subjected to security check until just prior to boarding the airplane. The passengers received their boarding passes after their luggage were checked and they have gone through the passport control. Loudspeakers announced the flight and the passengers had to form two different lines in front of the departure gate when the terrorist attacked them. It is Days v. TWA case where the plaintiff did not join the line but were escorted by airline agents. The court rejected the argument of TWA that the liability under the convention should not attach while a passenger is inside the airport building and should commence at the earliest when the passenger steps through the terminal gate in order to board the aircraft. The court decided that the phrase "in the course of any of the operations of embarking" means that the passengers must have been engaged in actions that were "a part of the operation or process of embarkation" and not limited to a particular place where the plaintiffs were standing when the accident occurred. The tripartite test that is mentioned earlier was applied and adopted involving the case of embarking within the meaning of Art 17 at the time of the injury. The test of Days case[footnoteRef:36] was uniformly applied and followed by other courts when considering whether passengers were injured in the course of the operation of embarking or disembarking. Warsaw Convention excluding from coverage, accidents that occurred within a terminal as argued by TWA but that was rejected by the court. Treaties should be interpreted according to the genuine shared expectations of the contracting parties thus the expectation of the passenger is also important. The court quoted from Missouri v. Holland case "Words that also are a constituent act ... must be interpreted knowing that they have called into life as being the development of which could not have been foreseen completely by the most gifted of its begetters." Protecting the passengers from modern day hazards of air travel including terrorism should be the present purposes of the Warsaw Convention. Applying the tort law the court held that the results were consistent with accident cost allocation as the airline is in a good position to prevent breaches of security, spread the risk of accident.[footnoteRef:37] [36: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.] [37: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.]

In Evangelinos v. Trans World Airlines, Inc.[footnoteRef:38] case the court rejected the argument by the airlines that the liability of the aircraft is based on location of the passenger with reference to the aircraft. The court said the triple test of the Days case has to be applied thus the location and activity of the passenger, extent of control by the airline over the injured passenger. In this case the court placed less weight upon the carrier control over passengers than in Days case. Plaintiff had completed all activities before boarding and was standing in line at the departure gate ready to proceed to the aircraft. The plaintiff was injured while the evangelinos families were acting as directed by the TWA before boarding busses employed by TWA. The announcement was made for final boarding so TWA were isolated from passengers of other airlines so they were congregated in a specified area designated by TWA. So the passengers were standing near the departure gate thus TWA assumed control over the group of passenger which is solely related with embarkation. TWA ground staff and the security personals of TWA were standing with the passengers which means TWA had full control over the safety and security of the passengers. We can conclusively understand that TWA had begun to perform its obligation as a air carrier under the contract of carriage and thus assumed responsibility for the plaintiffs safety and protection. The passengers had completed all of the steps for boarding an aircraft which was 250 meters away from the passengers where they were located; had been segregated into a group, acted as directed of airline agents; the court concluded that "the operations of embarking" had begun when the terrorist attack took place. The court distinguished the Evangelinos case from other cases based on the element of airline control over the passengers. The court held that control of the airline remains equally important as well as the location and activity. A standard based on three factors seemed for the court to be the best to calculate the policies underlying the policies under Art 17. In both Days case and Evangelinos the court placed much weight upon the location of the passenger at the time of the injuries, nature of the activities that the passenger were engaged at that time which has to be the prerequisite for boarding the airlines to the actual physical boarding of the aircraft. So from these two case we can say that embarking commenced as early as when the passenger first present himself to the aircraft at the terminal building for the purpose of checking in for the flight and thereafter proceeding with those activities necessary to be physically present on board the aircraft as directed by the carrier. So a passenger has been denied entry into the aircraft after he had severe medical problem was held to be in the process of embarking as the passenger had proceeded beyond the boarding gate and was close to the door of the aircraft when he was denied boarding.[footnoteRef:39] Is the cause of the accident a hazard of air travel? Control is the decisive factor, as long as the other two factors are met. In Upton case court held that the passengers were not under the control of the airline and were in a public area of the airport. Buonocore case[footnoteRef:40] redefined the Days test. In 1985 there was a terrorist attack on Rome's Leonardo da Vinci airport. passenger Buonocore after checking his luggage and obtaining a boarding pass walked towards the public area of the airport when the attack took place. Court applied the result but came to a different result. The court held that the Buonocore was not acting according to the directions of TWA as his movements was unrestricted towards other parts of the airport and not towards the gate when boarding was required. The passenger could not recover under such circumstances. The passenger who was a victim of the terrorist attack has not been embarking when he was required to do so even though luggage were checked and boarding passes were obtained. He was not in immediate proximity of the ground staff or the airline agents or was in the process of embarking. In Buonocore court listed factors[footnoteRef:41] and they are [38: Ibid.] [39: Patel v. British Airlines, 30 Avi. 16, 379 (E.D.N.Y. 2005)] [40: Buonocore v. TWA, Inc., 900 F. 2d 8, 10 (1990)] [41: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

(1) Immediate physical proximity of the gate exclusively for the passengers of that flight; (2) They were acting at the direction of the airline; (3) They were engaged in one of the activities necessary to be on board the aircraft;(4) Restriction on freedom of movement of the passenger.

Disembarking starts when the passenger exits the aircraft and proceeds towards the bus and the disembarking ends when he reaches the public area. Any injury caused by an accident during this process in compensable as per Warsaw. During disembarking if a passenger falls from the aircraft after the portable stairs are removed or if a passenger slipped as the stairs were wet and flight attendant not helping leading to injury then carrier will be liable. If the passenger is accompanied by an air hostess to the terminal in an unauthorized route and if the passenger falls in a construction hole then the airline will be liable. Falling on a slippery floor near customs, the carrier will not be liable as the passenger were in an area where the airline had no control. If the passengers were attacked by terrorists when they have presented passports for immigration, the airline will not be liable.[footnoteRef:42] If the passenger has not reached the location inside the terminal then airline is still liable for the injuries as the suffered while under the control of the airline. Airline will be liable if the passenger in injured while he is transported by bus to the terminal but if the injuries are sustained on his way to the passport control booth which is under the management of the airport authorities then airline will be not liable. Passengers injured inside a terminal while proceeding toward connecting flights after disembarking, will not be protected. By the time when the airline has deposited him at a safe point inside the terminal building then it may be considered that the passenger is free from all the risks inherent to air travel. The courts apply the same principal when it comes to disembarking as they apply when it comes to embarking. Thus the location of the activity, the control as to whether the passenger is engaged in the operation of disembarking at the time when the injury is caused.[footnoteRef:43] MacDonald v. Air Canada[footnoteRef:44] case defined what is disembarking. In this case the passenger fell in the baggage delivery and customs clearance area at Boston International Airport. The court defined disembarking as passenger has descended from the plane by the use of the stairs which have been supplied and has reached a safe point inside the terminal even though he may remain in the status of a passenger of the carrier while inside the building. She was entitled for compensation as Mrs MacDonald was standing near the baggage pick up area waiting for her daughter to recover her luggage. Mrs MacDonald was therefore not acting as a passenger not under the guidance of the ground staff of the airlines and was free to move around in the terminal. She was thus not performing the act required for disembarking. Warsaw did not apply to the claims for injuries suffered after the passenger had reached the airport terminal building. Court in this case focused on the location of the arriving passenger at the baggage retrieval area when she fell and so she had already finished the process of disembarking.[footnoteRef:45] [42: Martinez Hernandez v. Air France, 545 F. 2d 279 (1976)] [43: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.] [44: 439 F.2d 1402 (1971)] [45: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

In another case Maugnie v. Compagnie National Air France a passenger fell as she proceeded down the passenger corridor leading from the gate to the main gate of the terminal building after she came down from her Air France flight to proceed to an another connecting flight. The court held that she was not in the process of disembarking as she was acting on her own direction and no longer under the direction or control of Air France. She had completely disembarked within the meaning of Art 17. Control is an evaluating factor when it comes to location and activity. In MacDonald case the court focused on the location to conclude that the passenger had already disembarked.[footnoteRef:46] [46: Ibid.]

In Martinez Hernandez v. Air France case it was held that in MacDonald case the court viewed the nature of the passengers activity, location and the extend to which the air carrier was exercising control over the passenger at the time of the injury. The court also held that the process of embarking and disembarking is a physical activity of entering or exiting from an aircraft and the carrier will not be liable for injuries associated with the various activities before or after the flight. In this case the passenger was attacked in the baggage area of the terminal building. The passenger had emerged from the aircraft, descended the stairs, travelled via bus to the terminal, presented his passport to the Israeli authority and then passed through the passport control. The airline was not in control of the passengers and the passengers were only waiting to pick up the luggage so the passengers had finished the course of dismemberment so the carrier is not liable. If the passengers were attacked by terrorist when they were coming down the stairs or in the bus then carrier will be liable for bodily injury caused by the accident.[footnoteRef:47] If a passenger needs a wheelchair and due to negligence of the airline the passenger suffers a heart attack in the terminal then the airline will be liable because it is connected with the willful negligence of the carrier, the ground staff and the incident of heart attack is connected with disembarking but if a van is provided and due to sudden slamming of breaks the passenger is injured due to fall then also the carrier will be liable. A passenger who falls from an inter terminal bus while proceeding from the international terminal to the domestic terminal for the continuation of a journey were held to be in the course of disembarking. Fall from a bus while going towards the terminal was held to be in the course of disembarking. In Bergsman v. El Al Israel Airlines[footnoteRef:48] case the court held that Warsaw applies to passenger injury claim arising from an accident in a waiting room even though the passenger at the time of the injury has not commence the process of embarking or disembarking. [47: Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International, Netherlands, 2000.] [48: 10 Avi. 17, 346 (1967)]

Examples of non embarking event.[footnoteRef:49] [49: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

1) A passenger falls on a moving sidewalk in the terminal or when the passenger is with the other common passengers in the terminal. A passenger injured on a moving walkway in an unrestricted area far away from boarding time or gate. Injured in an escalator in a public area or an altercation at the main terminal counter involving the refusal of a passenger to have his checked baggage searched resulting in his arrest.2) A passenger killed by a terrorist attack as he way moving freely in the airport two hours before the flight. Passenger injured while walking to the passport control or a person waiting for a shuttle bus was not embarking as she was still in the public area.

Examples of Embarking events.[footnoteRef:50] [50: George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.]

1) A transit passenger proceeding towards the departure gate or a passenger fell from an inter terminal bus. A fall from the mobile lounge while reroute to the aircraft, or a passenger tripped on the stairs leading from the departure area of the terminal to the tarmac where the aircraft was boarding passenger.2) An assault of a passenger by an airline employee in an area open to only ticked passengers. Examples where disembarking is complete.[footnoteRef:51] [51: Ibid.]

1) Terrorist attack in the baggage retrieval area or attack on passenger after clearing immigration on the way to the baggage retrieval area. Attacked on the way to the immigration or the baggage area. 2) Passenger falls on an escalator after baggage retrieval. Falls when she was on the way to the connecting flight when she was not acting on the instruction of Air France. Injured when moving to the side walk after emerging from her aircraft leaving the area of the arrival gate and entering the pubic area.Conclusion.Liability of the airline for dismemberment ends the moment the passenger is safely deposited in the terminal building where no mandatory airline instructions need to be followed. Warsaw regime suffers from problems like it affords more protection to baggage than to passengers leaving many victims uncompensated. Strict application like the moment the passenger is inside the terminal gate the control of the airline is over creates the problem of under compensation so a more inclusive definition of "embarking" and "disembarking" is required. The control area should be only limited to the moment the airlines announces the passenger to congregate at the gate and should not extend to other areas of the airport like parking lots, canteen, and the airport-access roads as if they are included it will be unfair the part of the airlines. Moreover the passenger, whose luggage is checked and has obtained a boarding pass, is no longer free to move about after completing his or her check-in. the moment the passenger is subject to the instructions of the airline he is under the control of the carrier. Here the word instruction and not announcement by the airline, needs to be kept in mind. So if the passenger gets a boarding pass then it may be said that the process of boarding has started. Liability of the airlines should be limited to cases where passengers are inside the terminal and engaged in any of the steps towards embarking or disembarking. Liability of an airline is terminated when the passenger has crossed the area of the airport controlled by the airline. This also applies in case of emergency landing in a different airport.[footnoteRef:52] [52: M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.]

The purpose of the convention is to protect the infant industry from major claims that may financially ruin the industry. According to Article 17 the carrier is liable for damages caused by an accident so it was meant to cover the inherent risks of air travel and not every kind of risks to a passenger. This is true as the definition was narrowed down in the Saks decision. The court could not answer whether the strict application or a wider application be followed. What is an unexpected or unusual event and external to the passenger and does it have some causal connection to the operation of the aircraft or is it just an inherent risk in air travel. The passengers knowing about the limited liability take additional insurance to protect themselves where damages are not covered by the carriers liability. The aviation industry is expanded after 1929 and liability lust be increased. Mental injury caused exclusively without physical injury must now be included. Mental injury when it comes to terrorist attacks is very important. If the terrorist has gained control over the aircraft and has killed some passenger then such event may cause mental trauma or if the flight has been captured by the terrorist for many days without food or water then mental trauma is caused thus must be recoverable. Service given by the flight attendants are an integral part of the operation of the aircraft so a carrier is liable acts or omissions by the flight attendants. A passenger who purchases a flight ticket thus in a contract expects general standards to be followed so a passenger expects the crew to assist him in a prudent manner during the flight. Negligent and omission on the part of the crew will make the carrier liable and damage the reputation of the carrier.[footnoteRef:53] [53: Nutt, Kathryn M. "Air France v. Saks: An Accidental Interpretation of the Warsaw Convention." American University International Law Review 1, no. 1 (1986): 195-213.]

Bibliography.1) Jiefang Huang, Aviation safety through the rule of Law, Kluwar Law International, Netherlands, 2009.2) Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International, Netherlands, 2000.3) George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts in United States, Kluwar Law International, Netherlands, 2010.4) J. Scott Hamilton. Practical Aviation Law, Aviation Supplies and academic Inc, New Castle, Washington, 2011.5) Raymond C Speciale, Fundamentals of Aviation law, Mc graw Hill, 2006.6) Robert M Jarvis. Aviation law, cases and materials, Carolina Academic Press, N. Carolina, 2006.7) M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-19938) Paul Stephen. International Air Carrier Liability: The Montreal Convention of 1999, McGill 20059) Christopher E. Cotter. Recent Case Law Addressing Three Contentious Issues in the Montreal Convention.10) Nutt, Kathryn M. "Air France v. Saks: An Accidental Interpretation of the Warsaw Convention." American University International Law Review 1, no. 1 (1986): 195-213.11) http://nvflyer.wordpress.com/category/embarking-or-disembarking/ visited on 13th Oct 2012.