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May 10, 1994

BRITISH AIRWAYS, PLC, a corporation, Defendant.


The opinion of the court was delivered by: JOHN A. NORDBERG

This is a negligence action brought by the Plaintiff, Patricia Beaudet, against British Airways, PLC ("British Airways") for injuries she suffered while waiting for a British Airways flight in the British Airways Club World Lounge at Heathrow Airport in Hounslow, Middlesex, England on March 23, 1992. British Airways contends that this case is governed by the Warsaw Convention and a damage limitation clause contained therein. Before the Court are the parties' cross motions for summary judgment on those issues. For the following reasons, Plaintiff's Motion for Partial Summary Judgment is granted; the Defendant's motion is denied.


 The facts, taken in a light most favorable to the Defendant, are as follows.

 On March 23, 1992, the Plaintiff held tickets on Defendant's Flight No. 297 leaving from Heathrow Airport and arriving at O'Hare Airport in Chicago, Illinois. Upon arriving at the airport, the Plaintiff entered Terminal 4, which is primarily used by British Airways, although three other airlines use gates in the terminal. Although her flight was scheduled to leave at 2:15 p.m., and would have been called for boarding no earlier than 1:15 p.m., *fn1" Plaintiff arrived at the terminal at 11:00 a.m. Once inside the terminal, Plaintiff presented her passenger ticket at the British Airways ticket counter, handed over her baggage to a British Airways representative, and asked directions to the British Airways Club World Lounge (the "Club World Lounge" or the "Lounge").

 The Club World Lounge is maintained and controlled by British Airways and is operated for the benefit of British Airways's business class passengers. However, ticketed passengers of other carriers having certain access cards are also permitted access to the Lounge. Plaintiff was eventually injured there.

 Before arriving at the Lounge, Plaintiff passed through a central search area through what is known as the "Fast Zone", a passageway from the check-in area to the departure lounge. At the central search area, the British Airport Authority staff checked the validity of Plaintiff's boarding pass, an immigration officer checked Plaintiff's passport, and Plaintiff proceeded through a security control point where x-ray machines were located.

 Having cleared security, Plaintiff was permitted access to the departure lounge, or "sterile" area of the terminal. This area contains the Club World Lounge and various shops; it is limited to ticketed passengers with passports and boarding passes. Once inside the "sterile" area, passengers such as the Plaintiff may take an elevator down to the Club World Lounge.

 Once inside the "sterile" area, Plaintiff went to the Lounge, where a British Airways employee checked her boarding pass before allowing her to enter. Plaintiff apparently entered the Lounge; but, prior to her accident, left the Club World Lounge to shop in a Liberty of London store and to have her luggage tags laminated, all within the "sterile" area.

 After shopping, Plaintiff returned to the Lounge to relax, as her flight was not scheduled to leave for another hour and a half or two hours. At approximately either 12:10 p.m. or 12:45 p.m., Plaintiff approached a magazine rack inside the Lounge in an area which had recently been mopped and marked with yellow warning signs. *fn2" She slipped, tried to steady herself by grabbing the magazine rack, fell, and pulled the magazine rack over on top of her. Among other injuries, the Plaintiff suffered a fractured pelvis and has a permanent 3/4 inch shortening of her leg.

 The Defendant has made an offer of judgment in the amount of $ 75,000, the damage cap set out in the Montreal Agreement in accordance with the Warsaw Convention. The Plaintiff has thus far rejected the Defendant's offer, contending that the Warsaw Convention and the damage limitation provided by the Montreal Agreement do not apply to this case. The instant motions are an attempt to resolve that dispute.


 The Warsaw Convention is actually titled "Convention for the Unification of Certain Rules Relating to International Transportation By Air", 49 Stat. 3000 (1934), reprinted in 49 U.S.C.A. § 1502 note (West 1976) [hereinafter referred to as the "Warsaw Convention" or the "Convention"]. The Convention is a multinational convention for the unification of certain rules relating to international transportation by air. 49 U.S.C.A. § 1502 historical note (West 1976). The United States became a party to the Convention on October 29, 1934.

 Article 22(1) of the convention limited the liability of any carrier "in the transportation of passengers" to a sum of 125,000 but indicated that "by special contract, the carrier and the passenger may agree to a higher limit of liability." *fn3" Due to complaints that the liability limit provided in article 22(1) was too low, several air carriers agreed to a higher limit, in the amount of $ 75,000. This agreement, known as the Montreal Agreement, Agreement CAB 18900, was approved by the Civil Aeronautics Board on May 13, 1966 consistent with article 22(1). 49 U.S.C.A. § 1502 note (1976). Under the Montreal Agreement, air carriers agreed to waive the defense of due care available to them under the Warsaw Convention, thus imposing strict liability, and limiting liability to $ 75,000. Sweis v. Trans World Airlines, Inc., 681 F. Supp. 501, 503 n.6 (N.D. Ill. 1988).

 The issues now before the Court involve a dispute over the interpretation of the Warsaw Convention, not the Montreal Agreement. The Defendant contends that this case falls within the scope of the Convention; Plaintiff contends that it does not. This type of dispute is a matter of federal law and federal treaty interpretation. Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 617 (7th Cir. 1989) (quoting Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 53 L. Ed. 2d 1072, 97 S. Ct. 2939 (1979)). *fn4" In interpreting a treaty, the Court must begin "with the text of the treaty and the context in which the written words are used." Air France v. Saks, 470 U.S. 392, 396-97, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985).

 By its own terms, the Convention governs the "international transportation of persons, baggage, or goods performed by aircraft." Warsaw Convention, Ch. I., art. 1(1). International transportation is defined in article 1(2) as follows:

(2) For the purposes of this convention the expression "international transportation" shall mean 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. Transportation without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party shall not be deemed to be international for the purposes of this convention.

 Warsaw Convention, Ch. I., art. 1(2). A review of this language indicates that "international transportation" is defined as "any transportation" that meets certain conditions. While this definition suffices to resolve disputes over whether or not certain transportation by an airline qualifies as "international", it does little to explain the word "transportation", most likely because that word would seem to have a common meaning known to all who might seek to apply it.

 Here, however, there is a dispute over whether Plaintiff's injury comes under the Convention. Generally, cases discussing disputes of this nature turn on an interpretation of Article 17 of the Convention. See, e.g., 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) (analyzing Article 17 to determine if an airline was liable under the Convention for deaths of passengers occurring in a terminal ...

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