Trans World Airlines, Inc. appeals, pursuant to 28 U.S.C. § 1292(b), from summary judgment by the United States District Court, Southern District of New York, Charles L. Brieant, Jr., Judge, 393 F. Supp. 217 (1975) deciding that the airline was liable under the Warsaw Convention, 49 Stat. 3000 (1934). The District Judge was correct in holding that a terrorist attack was committed "in the course of . . . the operations of embarking . . .", Article 17, Warsaw Convention, 49 Stat. 3000 (1934).
Kaufman, Chief Judge, Smith and Feinberg, Circuit Judges.
On August 5, 1973, at Hellenikon Airport in Athens, Greece, two Palestinian terrorists hurled three grenades and unleashed a salvo of small-arms fire into a line of passengers preparing to board TWA Flight 881 to New York. Three people died and more than forty others were injured by this senseless act of violence.
The Warsaw Convention,*fn1 as modified by the Montreal Agreement,*fn2 provides, among other things, that an airline is absolutely liable,*fn3 to the extent of a maximum $75,000, for bodily injury sustained "in the course of any of the operations of embarking."*fn4 We are called upon to decide whether, under these provisions, TWA must provide indemnification for the deaths and injuries sustained at Athens. Our conclusion is that TWA must be held liable and that this determination accords with the plain meaning and the underlying purpose of the Warsaw provisions.
It is necessary that we briefly describe the boarding procedures for international flights at Hellenikon Airport in August, 1973 as an aid to the resolution of the controversy before us. The prospective passenger, after entering the terminal, proceeded to the check-in counter of the airline whose aircraft he was to utilize. There, he presented his ticket, deposited his luggage, and paid the departure tax. In return, he was given a boarding pass and baggage check. The passenger then passed through Greek passport and currency control after which he descended a flight of stairs into the Transit Lounge. Only passengers waiting to board international flights were allowed inside the lounge area where they were required to remain until boarding. While the traveler waited for his flight to be called, he secured his seat assignment at the transfer desk located inside the lounge. When his flight was announced, he proceeded to the designated departure gate, where he and his hand baggage were searched by Greek policemen. The passenger then walked through the doors of the terminal building and crossed a short terrace outside. Finally, he boarded a bus which transported him to the waiting airplane.
The attack on the passengers of TWA Flight 881 occurred after they had gone through several of the required steps recited above and while they were standing in line at the departure gate, to which a TWA representative had summoned them, waiting to be searched. After seven passengers had been searched, the terrorists made their assault upon those standing in line.
As a result of this tragedy, several of the injured passengers and the executrix of a passenger who had died, brought suit against TWA in the Southern District of New York.*fn5 28 U.S.C. §§ 1331, 1332. They claimed that the airline was liable under the Warsaw Convention for the injuries sustained and the death. After several cases were consolidated, the plaintiffs and the defendant moved for summary judgment on the issue of liability. Judge Brieant, in a thoughtful and thorough opinion, 393 F. Supp. 217 (S.D.N.Y. 1975), granted the plaintiffs' motion. He also issued a certificate pursuant to 28 U.S.C. § 1292(b), and this interlocutory appeal followed.
Article 17 of the Warsaw Convention 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.*fn6
Under the Montreal Agreement, liability for injuries described by Article 17 of the Warsaw Convention became absolute and the maximum damages were increased to $75,000. It is undisputed, moreover, that a terrorist attack is considered an "accident" within the purview of these provisions. See Husserl v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D.N.Y. 1972), aff'd 485 F.2d 1240 (2d Cir. 1973 (per curiam). Thus, the sole issue we must resolve is whether the passengers sustained their injuries "in the course of any of the operations of embarking or disembarking."
TWA contended, both before Judge Brieant and on this appeal, that the application of Article 17 should be determined by reference only to the area where the accident occurred. Liability under the Convention should not attach, it urges, while the passenger is inside the terminal building. The very earliest time at which liability can commence, the appellant argues, is when the passenger steps through the terminal gate. Judge Brieant, however, believed that "the issue . . . is not where [the plaintiff's] feet were planted when the killing began, but, rather, in what activity was he engaged." 393 F. Supp. at 220. Applying a tripartite test based on activity (what the plaintiffs ...