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