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RABINOWITZ v. SCANDINAVIAN AIRLINES

July 3, 1990

TOVA RABINOWITZ AND BARUCH RABINOWITZ, PLAINTIFFS,
v.
SCANDINAVIAN AIRLINES, DEFENDANT.



The opinion of the court was delivered by: Conner, District Judge.

OPINION AND ORDER

Defendant Scandinavian Airlines System ("SAS") moves this Court pursuant to Fed. R.Civ.P. 56 for summary judgment of plaintiffs' claim for liability under the Warsaw Convention on the ground that plaintiff Tova Rabinowitz was not "in the course of embarking or disembarking" within the meaning of Article 17 of the Warsaw Convention when she allegedly sustained the injuries for which she seeks damages in this action. Plaintiffs cross move for summary judgment on this claim. Defendant further moves for summary judgment of the state law claim of negligence on the ground that SAS did not own, operate, maintain or control the premises where plaintiff was allegedly injured. For the reasons stated hereinafter, defendant's motions are granted and plaintiffs' cross motion is denied.

FACTS

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

Plaintiffs claim that upon arrival at Copenhagen Kastrup Airport, they asked SAS employees to direct them toward the gate of their connecting SAS flight. Plaintiffs then proceeded, as allegedly directed, from gate 40 in Concourse C of the airport terminal building, at which they had arrived, to gate 26 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 approximately 9:30 Copenhagen time. After she was attended to by Copenhagen airport personnel for approximately one-half hour, plaintiffs continued to gate 26 where they boarded SAS Flight 730 and departed for Moscow at 11:20 a.m.

DISCUSSION

I. The Standard for Summary Judgment

A party seeking summary judgment must demonstrate that "there is 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.2d 762 (1987); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there 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). It must establish that there is a "genuine issue for trial." Id. at 587, 106 S.Ct. at 1356. "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11. The inquiry under a motion for summary judgment is thus the same as that under a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).

Defendant's motion for summary judgment on plaintiffs' Warsaw Convention claim is based on the contention that Tova Rabinowitz was not in the process of embarking or disembarking at the time of the incident and SAS is, therefore, not liable to plaintiffs under Article 17 of the Warsaw Convention.*fn1 Defendant 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 allegedly injured.

II. Claim under the Warsaw Convention

The application of the Warsaw Convention to any damages claim is determined by Article 1 and the transportation contract which, in the transportation of passengers, is the passenger ticket. Article 1 includes within the scope of the Warsaw Convention's application "all international transportation of persons, baggage, or goods performed by aircraft for hire." 49 Stat. 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 Article 1(2), the provisions of the Warsaw Convention apply and automatically govern the rights of the parties to an action for damages. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). Because plaintiffs' contract of transportation provided for travel that commenced and terminated in New York ...


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