The opinion of the court was delivered by: STANTON
Plaintiff Tsui Yuan Tseng claims defendant El Al Israel Airlines, Ltd. ("El Al"), which searched her person and bags as she was boarding a flight, subjected her to assault, false imprisonment, physical and mental abuse and humiliation, and the loss of and damage to her property.
The case was tried to the court on March 7, 8, and 11, 1996. From my observation of the witnesses and exhibits, I find the preponderance of the credible evidence establishes the following facts. All Agreed Findings in the Consent Pretrial Order are found as facts, and are supplemented by the findings below.
On May 22, 1993, Ms. Tseng went to El Al's terminal at John F. Kennedy International Airport in Queens, New York to take a flight to Tel Aviv. While awaiting check-in she was queried about her reasons for the trip, asked to wait, and then taken to a small room with a few chairs and a table, where she was searched.
At the instruction of a uniformed man and woman, she put her luggage (a suitcase, a carry-on bag and her purse) on the table and unlocked it. The man and woman took out the contents of her luggage and put her things into small baskets, which they took into another room into which she was not allowed to follow.
The woman then told Ms. Tseng to take off her jacket, sweater, shoes, and belt, and to loosen and lower her blue jeans to just below her hip. The woman proceeded to search her, first by feeling her body by hand outside her clothes from head to toe, and then with an electronic security wand.
After an hour or so, they stuffed her things messily back into her luggage. She was then escorted to her plane. They told her to leave her suitcase there, and that it would be put on the plane.
During the flight, she felt sick, upset, and nervous, and had a headache. She glanced a few times in her carry-on bag, but its contents were so disorganized that she could not find anything.
At her hotel in Tel Aviv, she opened her suitcase, carry-on bag, and purse. She sorted through the messy contents and discovered that many of her clothes were stained and damaged, and that several items were missing, including a Rolex watch, a jade ring, some of her clothes, and a thousand dollars in cash. She called El Al's office in Tel Aviv, and was told that they could not do anything about the losses in Israel and to wait until she was back in the United States and then report them.
She returned to the United States on or about June 20, 1994. Around the end of June, she went to see her doctor for treatment of headaches, upset stomach, ringing in her ears, nervousness and sleeplessness, all of which had bothered her since she was searched. She also brought to El Al, in person, a letter dated July 1, 1994, complaining about her search and detention and listing the items that were missing and damaged.
El Al claims she was searched because her reasons for her trip appeared "illogical," but it is unable (for lack of memory and records) to specify how. It urges, and I accept, that the actual method of search of her person conformed to their usual practice.
The parties dispute whether the Warsaw Convention applies to plaintiff's claims that she suffered injury as a result of her detention and search by El Al. In particular, they dispute whether her claimed injuries resulted from an "accident" within the meaning of Article 17 of the Convention, which states:
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.
Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338, 84 L. Ed. 2d 289 (1985), dealt with the definition of "accident" in Article 17. The Supreme Court concluded that "liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger," and stated further that "This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." 470 U.S. at 405, 105 S. Ct. at 1345. In Shen v. Japan Airlines, 1994 U.S. Dist. LEXIS 20854, 1994 WL 167989 (S.D.N.Y.), aff'd, 43 F.3d 1459 (2d Cir. 1994), this court applied the Warsaw Convention to the detention, search, and confinement of passengers by Japan Airlines. Id. at *4.
The record in this case does not support the proposition that the search of the plaintiff was wilful misconduct. The actual techniques for carrying out the search were those prescribed by El Al's procedures, and are reasonable in light of the need for discovering small dangerous objects, if the prospective passenger appears to pose a threat.
There is no evidence that the plaintiff actually posed such a threat, and there is no evidence explaining why she was selected to be searched. Although El Al's records state that her story was illogical, ...