Court, this conclusion demonstrates the absurdity of Defendant's position. One thing that the Warsaw Convention did not mean to do was to grant international air carriers absolute immunity from their negligence inside the terminal. There are at least two theoretical chinks in Defendant's armor. The first of these is that the Defendant's definition of "international transportation" cannot be as broad as they assert. Second, even if "international transportation" means what Defendant's say, and even if certain types of state law claims are pre-empted by the Warsaw Convention, there is no basis for holding that the instant claim is pre-empted. The Court now turns to these arguments.
1. "International Transportation"
As the Court has previously noted, the word "transportation" as it pertains to the Warsaw Convention, has been inartfully defined for the purposes of this case. Defendant apparently seeks to define the term "international transportation" so broadly so to apply to all claims of a passenger against an international carrier when the passenger has a ticket on that carrier's international flight. Defendant cites several cases for the proposition that the Warsaw Convention applies when (1) the passenger is travelling in "international transportation" as defined in article 1; and (2) that passenger's ticket contains certain provisions required by Convention article 3.
See, e.g., Sweis v. Trans World Airlines, Inc., 681 F. Supp. 501, 503 (N.D. Ill. 1988); see also Rabinowitz v. Scandinavian Airlines, 741 F. Supp. 441, 443 (S.D.N.Y. 1990) (stating that since the plaintiff's contract for transportation was international, the Convention applied). However, in every one of the cases cited by the Defendant, there was no question that the passenger, or passengers, was involved in "transportation." At minimum, those individuals were on the airplane involved, or in the course of embarking or disembarking. Not one of those cases turned on the question of whether or not the plaintiff was involved in "transportation." Thus, those authorities do not support Defendant's position.
In fact, several of the authorities cited by Defendant tend to support the Plaintiff's position. Defendant is essentially arguing that when a passenger has an international ticket with a carrier, the passenger cannot sue the carrier under a common law claim. This position has either been entirely ignored or implicitly rejected by several courts. See Rabinowitz v. Scandinavian Airlines, 741 F. Supp. 441, 447 (S.D.N.Y. 1990) (dismissing on jurisdictional grounds plaintiffs' state law claims for negligence after dismissing their Warsaw Convention claim); Sweis v. Trans World Airlines, Inc., 681 F. Supp. 501, 504 n.11 (N.D. Ill. 1988) (stating that the plaintiff's claim for negligence against a carrier was not affected by the court's conclusion that Article 17 did not apply); see also Kantonides v. KLM Royal Dutch Airlines, 802 F. Supp. 1203 (D.N.J. 1992) (considering the plaintiff's state law claims on their merits after granting the carrier's motion for summary judgment on Warsaw Convention, despite the conclusion that the Defendant did not dispute that the passenger was in "international transportation"); Rolnick v. El Al Israel Airlines, Ltd., 551 F. Supp. 261 (E.D.N.Y. 1982) (considering on the merits plaintiffs' negligence claim despite finding that they were without a remedy under the Warsaw Convention). None of the above cited cases considers the state law claims presented under a pre-emption analysis. Rather, each case seems to assume that if a plaintiff's claim is not governed by the Warsaw Convention, he is entitled to consideration on the merits of his state law claim, even if the plaintiff was, or was to be, a passenger on the defendant's airline and held a ticket providing for "international transportation." Only Judge Shadur expressly addresses the issue, however.
In Sweis v. Trans World Airlines, Inc., 681 F. Supp. 501 (N.D. Ill. 1988), the plaintiffs, members of the Sweis family, were injured during a terrorist attack inside the terminal building of Rome's Leonardo Da Vinci Airport. The Sweises sued their air carrier, Trans World Airlines, Inc. ("TWA") in a two count complaint. Count I alleged that TWA was negligent in having its check-in counter outside the airport's sterile area, thereby allowing the attack to occur. Count II alleged that TWA was strictly liable under the Warsaw Convention. In the Sweis opinion reported at 681 F. Supp. 501 (N.D. Ill. 1988), Judge Shadur granted the Defendant's motion for summary judgment on the plaintiff's Warsaw Convention claim, holding that the plaintiffs were not "in the course of any of the operations of embarking" when they were injured. In so holding, Judge Shadur indicated that liability "under the Convention" was limited to that provided by Article 17, with two exceptions, one for contributory negligence, Article 21, and for a carrier's intentional misconduct, Article 25. Sweis, 681 F. Supp. at 503-04. In a footnote, Judge Shadur stated that the "under the Convention" qualification was important. Id. at 504 n.11. He explained:
This qualification is important. Any conclusion that TWA is not strictly liable under the Convention does not preclude recovery for its negligence--indeed it may pave the way for such an action to proceed. Many of Sweises' arguments supporting strict liability are claims that TWA was negligent in having its check-in counter outside the sterile area. That may be relevant to Sweises' Count I claim (depending on the governing law), but it has no relevance to whether the Convention has made TWA strictly liable.
Sweis, 681 F. Supp. at 504 n.11. Judge Shadur thus assumed that the plaintiffs were entitled to consideration of their negligence claim on the merits because that claim did not come "under the Convention", despite the fact that he previously concluded that the plaintiffs had tickets that would satisfy the requirements of Convention articles 1 and 3. See Sweis, 681 F. Supp. at 503. Unfortunately, Judge Shadur did not explain the theoretical basis for his conclusion that the Sweis plaintiffs negligence claim did not fall within the Warsaw Convention. Nonetheless, the decision in the Sweis case governs this case.
Under Sweis, the Plaintiff's claim for negligence must be considered on its own merits.
In the opinion of the Court, one theoretical explanation for the conclusion explained in the Sweis footnote, is the argument that the plaintiffs there were not actually engaged in "transportation" under the Warsaw Convention. Under this view, the pre-emption issues raised and discussed, briefly, below have no bearing on the outcome of the case. The Convention just does not apply. While this position has not been considered or addressed by any court, at least one court has stated that one inquiry under the Warsaw Convention is "whether the plaintiff's claim arises out of an international air flight", thereby indicating that the proper inquiry for "transportation" is not limited to a consideration of the plaintiff's ticket. See Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1170 (S.D.N.Y. 1992).
This still leaves the question of the proper interpretation of the word "transportation." While this issue will most likely be resolved by the Courts of Appeals, the Court notes that the word's interpretation might be limited to include conduct expressly considered elsewhere within the Convention; that is, with respect to injuries to passengers, "transportation" is governed by Article 17, meaning that a passenger is only in "international transportation" when "on board the aircraft or in the course of any of the operations of embarking or disembarking." Warsaw Convention, Ch. III., art. 17.
Although this conclusion was rejected in cursory fashion in Bergsman v. El Al Israel Airlines, 10 Av. Cas. (CCH) P 17,346 (N.Y. Sup. Ct. July 12, 1967),
the Court is unaware of any alternative interpretation. In the opinion of the Court, the Bergsman opinion is unreliable and not persuasive. At minimum, however, the Court concludes that the Plaintiff in this case was not yet in "international transportation" when she was injured.
Therefore, the Warsaw Convention does not apply and Plaintiff may proceed with her common law negligence claim.
Assuming, arguendo, that "international transportation" under Warsaw Convention article 1 had the broad meaning attributed to it by the Defendant, the Court is of the opinion that Plaintiff's state law claim is not pre-empted by the Warsaw Convention.
The majority of federal courts once adhered to the view that the Warsaw Convention did not create a cause of action. See Dunn v. Trans World Airlines, Inc., 589 F.2d 408, 411 (9th Cir. 1979). Rather, it created a presumption of liability to be proven by otherwise applicable substantive law. This view, however, has given way to the view that the Warsaw Convention creates a cause of action that is the exclusive remedy when the terms of the convention are satisfied. See In re Korean Air Lines Disaster of Sept. 1, 1993, 289 U.S. App. D.C. 391, 932 F.2d 1475, 1490-94 (D.C. Cir. 1991) (Mikva, J., dissenting) (discussing the exclusivity of the Warsaw Convention remedy provided in Article 17), cert. denied, 112 S. Ct. 616, and cert. denied, 112 S. Ct. 616 (1991); Schroeder v. Lufthansa German Airlines, 875 F.2d at 620 n.5; Abramson v. Japan Airlines Co., 739 F.2d 130, 134 (3d Cir. 1984), cert. denied, 470 U.S. 1059, 84 L. Ed. 2d 835, 105 S. Ct. 1776 (1985); see also Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 59 L. Ed. 2d 72, 99 S. Ct. 1016 (1979) (indicating that the Warsaw Convention creates a cause of action enabling a plaintiff to sue under its terms).
Despite the increasing agreement that the Warsaw Convention is a plaintiff's exclusive remedy when it applies, there is divergence over the question of whether a plaintiff's failure to satisfy the terms of Article 17 also precludes that plaintiff's recovery under a state law claim. Typically, this issue arises when a plaintiff is injured during the course of an international flight but the plaintiff's injury did not result from an "accident". In such circumstances, Article 17 does not apply. The question then presented is whether the plaintiff can sue for his or her injuries under the common law. Some Courts have held that such circumstances permit a state law action. See Abramson v. Japan Airlines Co., 739 F.2d 130, 134 (3d Cir. 1984) (stating that Article 17 was intended to limit, not eliminate carrier liability), cert. denied, 470 U.S. 1059, 84 L. Ed. 2d 835, 105 S. Ct. 1776 (1985); see also In re Air Disaster at Lockerbie, 928 F.2d 1267, 1273 (2d Cir.) (favorably citing Abramson), cert. denied, 112 S. Ct. 331 (1991); Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1172-73 (S.D.N.Y. 1992) (relying on Abramson and Lockerbie); Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064 (N.D. Ill. 1985) (permitting state law cause of action for negligence, following Abramson, despite finding that Warsaw Convention did not apply). In contrast, the Plaintiff has taken the position that the Warsaw Convention entirely pre-empts all causes of action for passenger injury or death on international flights. See Jack v. Trans World Airlines, Inc., 820 F. Supp. 1218 (N.D. Cal. 1993). Despite this apparent issue, the Supreme Court has twice declined to rule on the scope of any Warsaw Convention pre-emption of state law cause of action when the Convention is not satisfied. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S. Ct. 1489, 1492 n.2, 113 L. Ed. 2d 569 (1991) (noting that although the district court dismissed plaintiffs' claims under the Warsaw Convention and under state law tort and contract theories, it addressed only the Warsaw Convention claim); Air France v. Saks, 470 U.S. 392, 408, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985) (indicating that the plaintiff sought recovery on a state negligence action, independent of her failed Warsaw Convention claim, but declining to address the issue).
In the opinion of the Court, the Abramson decision would govern this case if the Warsaw Convention were said to apply. While valid arguments may be made for the entire pre-emption of state law claims, when the Convention applies, even if the Convention is not satisfied, as in Eastern Airlines, Inc. v. Floyd and Air France v. Saks, the Court is of the opinion that such a result should not apply to the facts of this case, given the Convention's legislative history.
In crafting the provision that is now Article 17, the delegates to the first of two conferences, the Paris conference, considered a draft that extended accident coverage to international passengers:
from the time when [they] enter the airport of departure until the time when they exit from the airport of arrival.