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November 3, 1972


Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge:

This is an action for $75,000 for bodily injury and mental anguish allegedly suffered by plaintiff as a result of a hijacking which occurred on September 6, 1970. Suit was commenced in the Supreme Court of New York, New York County on July 21, 1971, and removed here on August 9, 1971. The complaint asserts that plaintiff, a New York resident, was a passenger on defendant's aircraft, scheduled for a direct flight from Zurich, Switzerland to New York on September 6, 1970; that the "aircraft deviated from its scheduled course and thereafter landed on a desert airstrip located some distance from Aman, Jordan", Complaint, para. 8; that plaintiff remained therein for some 24 hours, and thereafter was "forced to remain" in Aman until the 11th of September. As appears from the depositions of plaintiff and of Fritz Schreiber, defendant's pilot for the flight, the "deviation" was a product of an armed takeover of the aircraft by members of the Popular Front for the Liberation of Palestine.

 Plaintiff in her complaint alleges three "causes of action" deriving from the events summarized above: first, she claims under the Warsaw Convention, as modified by the Montreal Agreement; *fn1" secondly, she asserts that defendant breached its contract to conduct her safely to New York; thirdly, she alleges that her injuries were the result of the defendant's negligence, or that of its agents.

 Defendant has moved, pursuant to Rules 12(b) (6) and 56, F.R. Civ. P., to dismiss the complaint for failure to state a claim upon which relief can be granted. The grounds for the motion, as set out in the Affidavit of George N. Tompkins, Jr., verified on 17 August 1972, and in defendant's brief in support of the motion and reply brief, are that the Warsaw Convention, as modified by the Montreal Agreement, exclusively govern the liability of the air carrier engaged in international transportation; that liability arises only upon proof of the occurrence of an "accident"; that a hijacking is not an "accident" within the intendment of the Convention; that plaintiff's alleged injuries were not the product of an "accident" as contemplated by the Convention and Agreement; and that therefore defendant is not liable to plaintiff.

 For the reasons discussed below, I conclude that defendant is not "entitled to judgment as a matter of law", and that there are outstanding material issues of fact which are not resolved on the record presently before the court. Rule 56(c), F.R. Civ. P.

 The threshold question to be considered is one which, so far as I can determine, is of first impression in this court -- namely, whether the Warsaw Convention, as modified by the Montreal Agreement, applies in a hijacking context.

 Article I of the Convention in part provides:

"(1) This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire. It shall apply equally to gratuitous transportation by aircraft performed by an air transportation enterprise.
"(2) For the purposes of this convention the expression "international transportation" shall mean 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. . . ."

 Thus "(on) its face, the Warsaw Convention seems to cover all international carriage by air, without any limitation whatever." Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied 392 U.S. 905, 20 L. Ed. 2d 1363, 88 S. Ct. 2053 (1968). And, as the text indicates, "international carriage" is primarily a function of the intention of the parties, as expressed in the ticket or contract. L. Kreindler, 1 Aviation Accident Law, ยง 11.05(1) at 25-26 (1971 ed.).

 The parties do not contest that Mrs. Husserl was a passenger on defendant's flight 100, with Zurich and New York the respective places of departure and destination, that both Switzerland and the United States are "High Contracting Parties" to the Warsaw Convention, and that defendant signed Agreement CAB 18900 and pursuant thereto filed a tariff with the CAB (the "Montreal Agreement"). The parties, however, do seek to draw sharply conflicting conclusions from the apparent fact of application of the Convention to this dispute. Plaintiff contends that the Convention and the Agreement, when read together, render defendant liable for all personal injuries sustained, ". . . which liability does not depend on negligence on the part of the defendant." Complaint, para. 14. Moreover, she asserts that her right of recovery under the second and third counts of the complaint are independent of the Convention. Defendant, on the other hand, argues that the Convention regulates liability between the parties, that this regulation preempts any and all common law rights of action, and that, absent an "accident", there is no liability.

 Articles 17, 20, 21, and 25 provide the basic conditions for liability of the carrier under the Warsaw Convention:

(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 or disembarking.
(Article 20) "(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 ...

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