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BAKER v. LANSDELL PROTECTIVE AGENCY

June 27, 1984

ALIXANDRA C. BAKER, Plaintiff, against LANSDELL PROTECTIVE AGENCY, INC. and BRITISH AIRWAYS, Defendants; LANSDELL PROTECTIVE AGENCY, INC. Third Party Plaintiff, against MIDLAND INSURANCE COMPANY, Third-Party Defendant.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

CONNER, D.J.:

 Plaintiff Alixandra C. Baker ("Baker") commenced the instant case seeking to recover the value of certain jewelry she claims was removed from her hand luggage while she passed through a security checkpoint, manned by employees of defendant Lansdell Protective Agency, Inc. ("Lansdell") prior to boarding a British Airways flight from Kennedy Airport in New York to London, England. Baker alleges that approximately $200,000 worth of jewelry disappeared from her bag between the time she handed the bag to a security agent for passage through an X-ray scanner and the time the bag was returned to her on the other side of the screening area. She did not discover the alleged loss, however, until after her arrival in London. The case is currently before the Court on Lansdell's *fn1" motion for partial summary judgment (1) limiting its liability to $400 based upon the limitation imposed by the Warsaw Convention or, alternatively, by the terms of the passenger ticket, and (2) dismissing those causes of action which purport to hold Lansdell liable for the alleged conversion of the jewelry by its employees. For the reasons stated below, the motion is granted in part.

 I. Warsaw Convention

 The Warsaw Convention ("Convention"), *fn2" like all international treaties validly executed by this country, represents the law of the land, see Reed v. Wiser, 555 F.2d 1079, 1093 (2d Cir.), cert. denied, 434 U.S. 922, 54 L. Ed. 2d 279, 98 S. Ct. 399 (1977); O'Rourke v. Eastern Air Lines, Inc., 553 F. Supp. 226, 228 (E.D.N.Y. 1982), "equal in stature and force to the domestic laws of the United States." In re Air Craft Disaster at Warsaw, Poland, 705 F.2d 85, 87 (2d Cir. 1983), quoting Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir. 1971).As such, it preempts all local laws to the contrary. O'Rourke, 553 F. Supp. at 228; Husserl v. Swiss Air Transport Co., 351 F. Supp. 702, 706 (S.D.N.Y. 1972), aff'd per curiam, 485 F.2d 1240 (2d Cir. 1973).

 By its terms, the Convention applies "to all international transportation of persons, baggage or goods performed by aircraft for hire." Convention, art. 1, § 1. Essentially, it creates a presumption of liability on the part of an air carrier in certain situations for injury, death, or property damage, without proof of fault but subject to a concomitant limitation of liability. Day v. Trans World Airlines, Inc., 393 F. Supp. 217, 221 (S.D.N.Y.), aff'd, 528 F.2d 31 (2d Cir. 1975). It thus operates to redistribute the costs connected with air transportation. Id. at 220.

 Under the Convention, a carrier is charged with liability up to the sum of $125,000 francs for personal injuries 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." Convention, ch. III, art. 17 (emphasis added). The Convention also places a ceiling of 5,000 francs, or approximately $400, on a carrier's liability for "objects of which the passenger takes charge himself" without expressly defining the scope of the carrier's responsibility for the loss of or damage to such objects.See id. at art. 22, § 3. However, because it is envisioned that these objects will ordinarily be within the passenger's possession or control, it is both logical and consistent with the Convention's overall framework to interpret the scope of the Convention's applicability to these items as being coextensive with its coverage of injuries to the person. Indeed, because there is no indication that the scope of a carrier's responsibility for a passenger's personal effects is intended to be otherwise than the extent of its responsibility for the passenger's person, the Convention must be read as applying only to the loss of or damage to these personal items which occurs on board the aircraft or in the course of any of the operations of embarking or disembarking.

 Moreover, the Convention also imposes liability upon a carrier for the loss of or damage to checked baggage or goods, subject to a limitation of 250 francs per kilogram, if the loss or damage occurs while the bag is in the custody of the carrier. See id. at art. 18 §§ 1-2, and art. 22, § 2. A carrier is, however, disabled froma availing itself of the 250-franc-per-kilogram liability limitation if it fails to provide the passenger with a baggage check conforming to the requirements of the Convention. See id. at art. 4, § 4. In addition, a carrier is not permitted to take advantage of any of the liability limitations contained in the Convention if the passenger can demonstrate that the damage was caused by the carrier's willful misconduct or by the willful misconduct of any agent of the carrier acting within the scope of his employment. See id. at art. 22, § 1 and art. 25, §§ 1 and 2.

 As an initial matter, Baker and Lansdell disagree concerning how properly to characterize the bag from which the jewelry was allegedly stone for purposes of the Convention. Lansell argues that the bag and its contnets are properly considered property over which the passenger took charge, and thus that Lansdell's liability must be limited to $400 absent a showing of willful misconduct. Conversely, Baker contends that her carry-on bag is appropriately classified as checked baggage for the period of time it was in the hands of Lansdell employees for purposes of a pre-boarding security check. She further asserts that because she was not given a baggage check when she turned her bag over to the security guard, the Convention's limitations on liability cannot be relied upon even if the Court rules that the Convention is otherwise applicable to occurrences at the security checkpoint.

 Quite frankly, I am unpersuaded by plaintiff's argument, which in essence would require a carrier to provide a baggage check for each item it subjects to a brief, pre-boarding X-ray examination in order to retain its liability protection under the Convention. This limited exercise of momentary, and arguably inexclusive, dominion over property of which a passenger has otherwise taken charge does not bring the property within the ambit of Article 4 of the Convention. *fn3" Rather, the essential condition that triggers a carrier's obligation to issue a baggage check is that the carrier "accept" the bag for purposes of transportation. Thus, so long as the carrier has taken control over the carriage of the bag, the provisions of Article 4 will apply regardless of whether the baggage is accepted in the normal course prior to boarding or is instead taken from the passenger by the carrier or its agent after the passenger has already boarded the aircraft. See Hexter v. Air France, F. Supp. 932, 935 (S.D.N.Y. 1982); Schedlmayer v. Trans Int'l Airlines, 99 Misc. 2d 478, 416 N.Y.S.2d 461, 466 (Civ.Ct. 1979). However, where, as here, the passenger only briefly relinquishes physical possession of her hand-carried property for a necessary security check conducted in her presence, but retains resposibility for the transportation of that property, Article 4 does not apply. Accordingly, I conclude that plaintiff's failure to receive a baggage check at the security counter for the handbag from which she claims her jewelry was removed does not strip Lansdell of the liability limitations of the convention to the extent that those limitations are otherwise applicable.

 The central issue on this motion is really whether the Convention applies to incidents occurring while a passenger is in a pre-boarding security area. To resolve this question, the Court must determine whether Baker was "in the course of any operations of embarking" at the time the jewelry was allegedly removed from her bag. If so, then her recovery will be limited to $400, absent a showing that the loss was caused by the willful misconduct of Lansdell of one of its employees acting within the scope of his employment. *fn4"

 In Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890, 50 L. Ed. 2d 172, 97 S. Ct. 246 (1976), reh'g denied, 429 U.S. 1124, 51 L. Ed. 2d 574, 97 S. Ct. 1162 (1977), the Second Circuit was required to analyze for the first time whether a passenger can be considered in the course of any of the operations of embarking while still inside the terminal building. In rejecting a mechanistic, location-based approach advocated by the airline, under which Article 17 of the Convention would not apply until the passenger stepped through the terminal gate, the court embraced the reasoning of Judge Brieant of this Court and adopted a three-part test for determining when one is in the course of any of the operations of embarking. The factors considered under this test include: (1) the nature of the activity the passenger was engaged in; (2) under whose control or at whose direction the passenger was doing it; and (3) the location of the activity. Id. at 33; see Evangelinos v. Trans World Airlines, Inc.,, 550 F.2d 152, 155 (3d Cir. 1977) (en banc) (adopting standard based upon same three factors); see also Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1262 (9th Cir.), cert. denied, 431 U.S. 974, 53 L. Ed. 2d 1072, 97 S. Ct. 2939 (1977) (location but one of several factors to be considered).

 Although Day, Evangelinos, and Maugnie each arose in the context of an attempt by a plaintiff to invoke the Convention in order to impose liability on a carrier, rather than as in the instant case, where a defendant seeks to take advantage of the Convention for purposes of limiting its liability, the difference is not significant. The Second Circuit in Day, and the Third and Ninth Circuits in Evangelinos and Maugnie, respectively, adopted multi-factored approaches to the question of scope of the operation of embarking, based upon their analyses of the language of the Convention and its "legislative" history. See Evangelinos, 550 F.2d at 157-58; Maugnie, 549 F.2d at 1260-62; Day, 528 F.2d at 33-38. The Second Circuit in particular determined that subjective consideration of the three factors best effectuates the intent of the Convention's draftsmen to create a system of internatinal air law flexible enough to keep pace with evoluationary changes in the nature of civil air travel. See id. at 38. Accordingly, if it is determined after due consideration of the relevant factors that an incident occurred during one of the operations of embarking, then all applicable conditions of the Convention must be given effect, including both the terms that create automatic liability and the concomitant terms that limit the liability created.

 Applying the three-part test endorsed in Day, I conclude that Baker was engaged in one of the operations of embarking at the time her jewelry was allegedly stolen. By federal statute, "all passengers and all property intended to be carried in the aircraft cabin" must be screened for weapons prior to boarding. 49 U.S.C. § 1356(a)(West 1976); see 14 C.F.R. §§ 108.1 to 108.25 (Jan. 1983). Although the security checkpoint at which Baker and her carry-on baggage were screened for weapons was not located immediately at the flight gate, it was located in an area to which only passengers, and not the general public, were permitted access. As Baker herself testified at her deposition: "You had to walk up ...


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