[1]

PROJECT.
International Aviation Law
Duration of Liability of Carrier under Warsaw
Convention, Art 17 of the Warsaw Convention.
















.
Duration of Liability of Air Carrier under Warsaw Convention.
The legal relationship between airlines and international passengers began with a
landmark international treaty generally known as the Warsaw convention and was titled
The Convention for Unification of Certain Rules Relating to International
Transportation by Air. It was in the year 1929 when the aviation industry is in its infancy
but it was felt that it held a great promise to afford a better, safer, faster and more
comfortable journey thus the industry needed protection. So the members agreed to adopt
the international treaty that would protect the international airlines from loss in the event
of a crash as the crashes were very common then, secondly, promotion of availability of
liability insurance to international airlines, thirdly, providing uniform terms and condition
of transportation by air and fourthly, provide a framework of internationally uniform law
to govern international airline crashes. It was made not only to set uniform standards for
aviation industry but also careful consideration was given to safety issues so that the
consumers and investors develop confidence in the aviation industry by imposing strict
liability on international airlines for passenger injury or death, substantial limits defense
that would otherwise be available to international airlines under the common law against
claims for loss or destruction of cargo.
1

The Warsaw convention establishes the rules of liability and limitation for International Air
Carriage. It establishes the rules insuring adequate and reliable recovery for injury to
person or property and to protect the infant airline industry.
2

Before going into the liability we need have an idea of aviation safety. Safety means
freedom from risks, it means state of being protected from or guarded against hurt or
injury. But if aviation industry has to be safe then the industry will not exist at all.
3
So
certain standards needs to established to that passenger is comfortable as well as the
industry also flourishes. Aviation safety means state of freedom from unacceptable risk of
injury to persons or damage to aircraft and property. It may include imposition of
particular safety standards, suspension license of unqualified pilot, rigorous training,
grounding of civil aircraft in case of fault or crisis so its approach has to be multi

1
J. Scott Hamilton. Practical Aviation Law, Aviation Supplies and academic Inc, New Castle, Washington, 2011.
2
Ibid.
3
Jiefang Huang, Aviation safety through the rule of Law, Kluwar Law International, Netherlands, 2009.
Duration of Liability of Air Carrier under Warsaw Convention.
disciplinary ranging from technical, economic, managerial as well as legal. Safety has a
technical dimension but the legal aspect cannot be ignored. The legal aspect also includes
policies which will affect the aviation industry as a whole and thus commerce of the world.
4

The liability of the carrier commences from the moment he accepts the goods for
transportation to the period where it transports the goods until these are delivered at the
place of the decided destination. So at the start to the end of the journey the carrier is liable
for many things that can go wrong. These are discussed in different sections.
5

Duration of Liability under Warsaw Convention.
In case of duration of liability we still have to consider the length of time during which the
carrier remains with the passengers. It begins from embarking to the flight to
disembarking. Art 17 makes us liable for damage in the event of death or wounding of a
passenger if there is an accident which caused damage which took place on board the
aircraft or in the course of embarking and disembarking.
Liability towards Passengers.
Liability towards the passengers starts when the passenger is on a process of embarking.
The carrier is 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.

Art 17 of Warsaw talks about liability of the carrier towards the passengers. There are four
key words in this section and they are accident, bodily injury, and operation of
embarking, disembarking. Five things need to be proved under Art 17. They are (1)
Damage sustained is a result from (2) passengers death or bodily injury (3) caused by an
accident (4) which occurs on board the aircraft (5) in the course of embarking or
disembarking.

4
Jiefang Huang, Aviation safety through the rule of Law, Kluwar Law International, Netherlands, 2009.
5
Raymond C Speciale, Fundamentals of Aviation law, Mc Graw Hill, 2006.
Duration of Liability of Air Carrier under Warsaw Convention.
Passenger.
First we must understand who is a passenger. Art 1 makes the convention applicable to all
international transportation of persons, luggage and goods. For Art 17 the passenger must
be a live person. Art 1(2) indicates that the convention applies to persons with contract of
carriage. The working crew is therefore exempted from the scope of the Convention. A
passenger has a right to bring an action for bodily injury or wounding. If the passenger
dies, his representative has the right to bring action against the carrier.
6


What is an Accident on flight?
Accident must lead to death or bodily injury. For this we need to understand what
accident is. Accident has been defined as an unexpected and sudden event that takes place
without foresight.
7
So it can be understood that the event must be unexpected and unusual,
which should then qualify as an accident which should lead to damage. Hijacking can be
regarded as an accident which must lead to bodily injury to qualify under Art 17.
8
In
another incident a fellow passenger attacked another passenger. The court held that it does
not qualify as an accident under Warsaw.
9
The incident which should be unusual or
unexpected had to be on board the aircraft and must be directly or indirectly caused by
negligence or error of the crew or the cabin assistants.
A passenger is struck by another passenger without provocation is not an accident as it has
nothing to do with aircraft operation. So if two passengers starts fighting then carrier will
not be liable but if the fight was caused by serving overdoes of alcohol then cabin assistants
are liable and thus the carrier is liable. So a direct or indirect act of the crew or the cabin
assistants is necessary. If a passenger wants to change his seat due to medical reasons but
was not allowed and which lead to health problems in the future, will qualify as an accident
and thus bodily injury. A passenger suffers from asthma was exposed to cigarette smoke.
He suffered a severe asthma attack and dies as a result. The refusal by the cabin crew to
reseat the passenger was a negligent inaction which will be termed as an accident leading

6
J. Scott Hamilton. Practical Aviation Law, Aviation Supplies and academic Inc, New Castle, Washington, 2011.
7
DeMarines v. K.L.M. Royal Dutch Airlines, 14 Avi 18,212 (1977)
8
Husserl v. Swissair, 13 Avi 17,603 (SDNY, 1975)
9
Price v. British Airways, 23 Avi 18, 465 (1992)
Duration of Liability of Air Carrier under Warsaw Convention.
to death thus will qualify under Art 17.
10
If there is confiscation of medical bag which
contained live saving drugs, then any damage resulting from not having it will be the
responsibility of the carrier. The failure of the airline to comply with a health based request
to ensure that the hand baggage travelled with the passenger was an event or happening
within the plain meaning of those terms as explained by the supreme court in the Husain
case. The event has to be unusual and unexpected. If the passengers were given repeated
assurances that the medical hand baggage will not be taken from him or will not be delayed
on arrival and if the bag is lost in transit then it qualifies as an accident. The unusual and
unexpected event is external to the passengers as well as refusal of assistance by the
ground staff or the cabin crew. So the action of the carrier must be linked to the death or
bodily damage to the passenger. If the illness preexisted it will not matter as there was
willful negligence and failure to comply with procedures on the part of the carrier in
aggravating the illness considerably. If the seizure of the bag leads to the death then delay
will not matter but the seizure must take place during the process of embarking.
11
The
carrier is responsible for orderly and necessary boarding procedure and if there no
compliance with it then carrier will be liable.
Failure to remove the hypodermic needle from the cushion seat was an accident as it was
the failure to perform the duty by the cabin crew and thus qualify as an accident.
12
The
simple act of not doing anything or remaining silent on behalf the cabin crew will be
termed as an accident which thus leads to bodily injury. But if the passenger is not in good
health and the flight has aggregated the symptoms then it wont qualify as an accident
leading to bodily injury. An event is not an accident if it arose exclusively from passengers
state of health. US courts narrowed the term accident by stating that an event was not an
accident if it arose exclusively from the passengers state of health. The word extensively is
important as it means that the accident was fully caused by the passengers state of health

10
Olympic Airways v Hussain, 2004 WL 329950
11
Prescod v AMR American Airlines, 2004 US App. Lexis 17432
12
Waxman v C.I.S. Mexicana de Aviacion, New York, 1998; 12 F.Supp. 2
nd
508
Duration of Liability of Air Carrier under Warsaw Convention.
and not by the external influence or negligence of the ground staff during embarking or
disembarking or by the cabin crew during the flight.
13

The injury if caused by the changes done by the crew like some necessary changes in the
operation of the flight which in normal, prudent, usual in the course of the journey will not
be termed accident. So any bodily injury caused by that will not be termed as an accident
leading to bodily injury.
14
If a passengers hearing capacity is damaged due to negligent
maintenance and the pressurization system of the aircraft, then the carrier will be liable as
there was negligence on the part of the crew which lead to the bodily injury. But if it is
found that the system had functioned properly then the passenger will not be liable for
damages as the change in pressure in the cabin is normal as part of the flying in different
altitudes.
15

So death or bodily injury must result from an accident and the accident must occur on
boards the aircraft or during embarking or disembarking. Death may occur due to a casual
accident which may not kill the passenger instantly but the passenger may have suffered
injuries leading to death after few weeks. So damages can be awarded as there is a casual
link as well as pre death pain. If a passenger with heart problem is not provided with a
wheelchair during disembarking which led to a heart attack, then in that case accident was
the failure of the carrier employees to provide the wheelchair which caused the bodily
injury which is heart attack so it is compensable under Warsaw. Another point that needs
to be noted is that there are many injuries that can happen while on board or during
embarking or disembarking but are not compensable as there must be an accident to
qualify it as bodily injury.
Accident may be related with aircraft operation. A discussion of Air France v Saks is
required. A passenger on an Air France flight Ms. Saks going from Paris to Los Angeles, felt
severe pressure and pain in her left ear when the aircraft descended towards Los Angeles.
Ms. Saks after disembarked continued to feel the pain but did not inform any Air France
crewmember. She became permanently deaf in her left ear as later revealed by her doctor.

13
Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International,
Netherlands, 2000.
14
Warshaw v TWA, 14 Avi 18,297 (1977)
15
Air France v Saks, 18 Avi 18, 538
Duration of Liability of Air Carrier under Warsaw Convention.
As pressurization system had operated in a normal manner so Air France argued that it is
not an accident within the meaning of Article 17 as the injury was caused by the normal
operation of the pressurization system and therefore do not qualify as an accident.
Definition of accident should be flexibly applied after assessment of all the circumstances
surrounding a passengers injuries. The US Supreme Court held that liability under
Article17 arises only if there is an unexpected or unusual event which caused injury to the
passengers which is caused by or happening that is external to the passenger. Chain of
causes must be proved in any injury and it is required that the passenger is able to prove
that some link in the chain has led to unusual or unexpected event external to the
passenger. Warsaw does not impose carrier liability for injuries that are not caused by an
accident. The passenger has the burden to proving that the accident has unusual and
unexpected. The Court held that the injury was not a product of a chain of events or causes.
Moreover normal operation of an aircraft does not constitute an accident.
16


From here we can derive five points.
1) Unusual and unexpected event,
2) which should be external to the passenger.
3) Flexibly applied in determining all circumstances.
4) Chain of events leading to the injury thus the cause of the injury and not the injury
alone.
5) Warsaw does not impose absolute liability on the carrier.

Carrier should not be liable for most injuries, as long as they are unexpected or unusual.
Carrier should not be liable for all damages. Carrier cannot be always held liable for any
injury that befalls on a passenger without any causal connection between the damage and
the operation of the aircraft. This is the reason why the passenger must insure themselves
against all other risks that are not associated with the operation of the aircraft.


16
Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International,
Netherlands, 2000.
Duration of Liability of Air Carrier under Warsaw Convention.
Question now arises what exactly in normal and expected operation of a carrier. Injury
occurring due to the fault exclusively to the passenger so it will not be termed as an
accident as it is not caused by the operation of the aircraft by personal causes. Accidents
like injury due to intoxication can occur in any sphere of life and it would be absurd to hold
the carrier liable. But if the intoxicated passenger falls on another passenger and injures
him then it will be an accident. This is because it is the duty of the cabin crew to handle the
matter and take necessary measures to avoid such occurrences by stop serving excess
alcohol or changing the seat of fellow passenger if necessary. So operation of the aircraft
not only includes technical matters but also the proper workings of the cabin crew. Injury
due to some normal day to day activity will not be termed accident. A passenger is injured
by tripping over another passengers shoes or hand luggage placed in the aisle during
boarding is not an accident.
17
A passenger placing hand luggage in the aisle during
boarding is an expected normal event and if it causes injury by tripping on a passenger
then it will be termed and an unusual event if Saks case is applied. So one must be careful
that normal events leading to accident but not directly or indirectly related with the
operation of the carrier should not qualify as an accident. Passengers own internal
reaction to the usual, normal and expected and if the operation of the flight increases it
then it will not be an accident. An event can become an accident through an act or omission
by the carrier or its agents or servants. In the Tsevas v. Delta Airlines case a female
passenger was sexually assaulted by a drunken passenger who sat next to her. Ms. Tsevas
earlier asked the cabin crew that she should be seated elsewhere. The crew not only
ignored her complaints but kept serving the intoxicated passenger with more alcohol. The
court held that the sexual assault was an accident as it was caused by the over serving of
alcohol and refusal to reseat her by the cabin crew which was casual to the accident.
Moreover the accident is unexpected, unusual and external to the passenger which was
caused by the service of the flight attendant. The service of the flight attendants is an
integral part of the air travel and related with the operation of the aircraft. The airline was
held liable.
18
In another case Wallace v. Korean Air, a female passenger named Ms. Wallace
was onboard Korean air travelling from Seoul to Los Angeles. It was an overnight flight and

17
Craig v. Compaigne Nationale Air France, 45 F.3d 435 (1994).
18
Tsevas v. Delta Airlines, WL 767278, (1997)
Duration of Liability of Air Carrier under Warsaw Convention.
she was seated between two men. She was sexually assaulted by one of the men when the
lights were switched off at night. She tried to stop him but ultimately had to hit the
perpetrator and flee. She was seated later elsewhere. The assaulter was not served alcohol
so there was no direct relation with the service of the flight attendants. The assaulter did
not show any signs of being a sexual molester prior to the attack. The court held that it is an
accident under sec 17 as it was connected with the operation of the aircraft. Here there is
strict application of Saks but we must understand that sexual assault can occur in any mean
of transportation and it is not a specific risk to air travel only. It is natural to be travelling
on a public transportation when you are seated next to someone unknown to you. Dimmed
light or unknown passenger cannot be a circumstances leading to the accident. A sudden
and unexpected assault by between passengers has nothing to do with the operation of the
aircraft and cannot qualify as an accident according to Article 17.
19
There are some
inherent defects in Warsaw when it comes to terrorist attacks as Warsaw is applicable to
injuries sustained by passengers on an international flight when an accident happens.
Convention does not apply to domestic flights or persons killed or injured on the ground.
Moreover it does not cover the acts done leading to injury which is not connected with the
operation of the flight. The acts that a carrier will be held responsible are those acts done
by the employees of the carrier or have substantial connection to the carrier. Terrorist
attack are linked with the third party how have no connection with the carrier.
20

US courts have held that terrorist attack is a part of air travel and air carrier should be held
liable under Warsaw. If tort law is applied then carrier is definitely liable for such acts.
Carrier is in a position to prevent such attack as it has an internal mechanism of safety to
prevent such attack on board the aircraft. It also has the power to implement safety and
security measures so if there is insufficiency is the safety measures leading to a terrorist
attack then carrier will be held liable for such acts. In Haddad v. Air France case it was
held that accident could not be restricted to mechanical and technical events on the carrier
in case of a hijacking situation if the passenger is injured due to the accident of hijacking.

19
Wallace v. Korean Air, 214 F3d 293 (2000)
20
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
Duration of Liability of Air Carrier under Warsaw Convention.
The term accident needs to be extended to include unexpected actions of third parties
during flight.
21


What is bodily injury on flight?
Bodily injury requires some proof of physical damage or impairment of the body of the
passenger. So a broken arm, burns or broken leg does qualify. Mental injury if any like
nervous breakdown or trauma must result from a bodily injury. As the area of mental
injury is vast and cannot be proved like that of bodily injury so it is outside the scope of
Warsaw. A natural ailment of passengers which may get aggravated in flight does not
quality as bodily injury. Mental and emotional harm, psychic injuries, unaccompanied by
physical injury is not compensable under Art 17.
22
So mental injury must emanate from
physical injury and the physical injury must be caused by an accident.
As per art 17 three condition must be fulfilled when it comes to bodily injury. They are that
bodily injury must be suffered by an accident on board the aircraft during embarking or
disembarking. It is the advent of terrorist hijacking that the concept of emotional distress
first came into the picture. So people started demanding compensation for mental trauma
caused by terror even though they did not receive any physical injuries. So the question
arose if Art 17 included mental trauma exclusively without physical injuries. In the case
Burnett v. TWA a Trans World Airlines aircraft was hijacked on September 6 1970 and was
forced to land in the dessert near Amman, Jordan.
It is the advent of terrorist hijacking that the concept of emotional distress first came into
the picture. So people started demanding compensation for mental trauma caused by
terror even though they did not receive any physical injuries. So the question arose if Art
17 included mental trauma exclusively without physical injuries. In the case Burnett v.
TWA a Trans World Airlines aircraft was hijacked on September 6 1970 and was forced to land
in the dessert near Amman, Jordan. As per the French legal system lesion corporelle means
bodily injury and lesion mental means mental injury and it distinguished then and

21
Haddad c. Air France 1982 RFDA 342
22
Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 478 (1978)
Duration of Liability of Air Carrier under Warsaw Convention.
considered them as mutually exclusive. Therefore mental anguish is not within the purview
of Article 17.
23
Courts gave a strict literal meaning, to the Article and denied recovery for
emotional distress unaccompanied by physical injury. The carrier is liable for exclusive
objective bodily injuries, caused by the psychic accident, and bodily injury flowing from
accidents, but not mental trauma which have no connection with body or just behavioral
manifestation of such mental trauma. Recovery is possible for mental trauma which is
related with bodily injury and not those not related with bodily injury. The intention of the
drafters were looked into in the case Husserl v. Swiss Air and the court held that the
drafters of the convention did not intend to preclude recovery for any particular type of
injury such as purely mental injuries thus should be compensable.
24

On June 27, 1976 an Air France aircraft was hijacked. The hijackers held the passengers for
several days at Entebbe Airport in Uganda before rescue could take place. The court in this
case Air France v. Teichner held that recovery for mental trauma under Art 17 is
permitted. The court analyzed the term lesion corporelle and held that when Warsaw
convention was drafted, French tort law allowed damages for mental trauma so there is no
need to believe that the convention intended to exclude mental recovery. The later
agreements in the convention between the parties changed the meaning of Lesion
corporelle to personal physical injury. This is because the aviation industry was at a very
infant state so to protect the industry financially; mental injury was separated from
physical injury so that the aviation industry is not over burdened with excess claims.
Secondly medical science was not that advanced then to understand the deep relation
between body and mind so mental injury could not be easily proved as compared to
physical injury. But by 1970s it was developed to include mental injury as an important
injury and aviation industry was developed at a stage to include mental injury to be
recoverable. This helped the convention from becoming dated and seeing the changes in
the international law such expanded meaning is necessary.
25


23
Burnett v. TWA, 368 F Supp 1152 (1973)
24
Husserl v. Swiss Air, 388 F.Supp. 1238 (1975)
25
Air France v. Teichner, S & B Av R VII/141
Duration of Liability of Air Carrier under Warsaw Convention.
In Floyd v. Eastern Airlines court held that the translation of lesion corporelle
26
lead to
the meaning bodily injury but also means personal injury as this is how French legal
system uses it if grammatically correct translation is used. Personal injury thus include
mental trauma. Eastern Airlines flight on May 5, 1983 departed from Miami. Shortly
afterwards it lost one of its engines due to low oil pressure. The flight crew decided to
return to Miami international airport but lost two other engines. The passengers were
informed that the plane would be ditched in the Atlantic Ocean. But afterwards the flight
crew managed to restart the engine as managed to safely land in the airport. The court held
that mental distress is recoverable but was later reversed.
27
But there is a problem with the
term lesion corporelle. It was not used in France in 1929 and the dictionary meaning was
physical injury and it does not include mental trauma. The dictionary meaning has the
same meaning as other legal systems. The US Supreme Court thus held that air carrier
cannot be held liable for mental anguish unaccompanied by physical injury. This is because
the convention was established to create uniformity in rules regarding air travel so its main
purpose was to block hindrances which will increase if recovery of mental distress is
allowed if unaccompanied with physical injury. Secondly the purpose was to foster growth
in the aviation industry so recovery of damages based on mental injury alone can hinder
the growth so psychic injury alone cannot be recovered.

The court in Kotsambasis v. Singapore Airlines held that Convention does not include
purely psychological injury. Miss Kotsambasis sued the Singapore Airlines for mental
trauma as its aircraft had to be landed in Athens airport due to engine problem. The
passengers could not disembark the aircraft for several hours as no facilities were
provided. This caused mental distress. Court held that bodily injury and lesion corporelle
are same and both are ambiguous as to whether they refer to psychological injuries. Bodily
injury was not intended to include purely psychological injuries.
28
So for now recovery for
emotional distress is allowed as long as it flows from bodily injury.


26
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
27
Floyd v. Eastern Airlines, 872 F.2d 1462 (1989)
28
Kotsambasis v. Singapore Airlines, 148 ALR 498 (42 NSWLR 110)
Duration of Liability of Air Carrier under Warsaw Convention.
Physical manifestation of emotional and mental distress like cramps, nervousness,
perspiration, sleeplessness, tension are not bodily injury but may qualify for compensation
if it also caused bodily injury to the passenger. The physical or bodily injury must be the
proximate cause of the mental injury. Recovery of weakness, nausea, cramps, malnutrition,
diarrhea if directly resulted from the flight can be allowed.
29
Courts can give compensation
for mental injuries if it directly flows from physical injuries like medical evidence for
chemical thus physical change in brain through medical test can qualify. In Kalish v. TWA
case a passenger was trampled on by other passengers during emergency evacuation of the
aircraft due to fire, can recover damages for mental trauma caused by physical injury that
was caused.
30
In Oparaji v. Virgin Atlantic Airways case a passenger was denied boarding
at the entrance to the aircraft because it was thought that he had a fake passport but it was
later proved that the passport was valid. But by then the flight was closed and the
passenger had to make alternative travel arrangements which caused mental and
emotional distress. The court held that it is an accident but did not lead to any physical
injury thus will not qualify for compensation. The court did hold that there was emotional
distress though it was unassociated with physical injury. Damages for emotional distress
may be awarded where the emotional distress flows from or directly related to physical or
bodily injury. Thus a physical injury caused mental trauma then it will be recoverable only.

Embarking..Disembarking.
Concept on embarking and disembarking needs to be understood. Plaintiff after proving
accident coupled with bodily injury must prove is that it occurred while he or she was on
board the aircraft or "embarking" or "disembarking" within the meaning of the Warsaw
Convention. The tests developed by Day v. Trans World Airlines, Inc and Evangelinos v.
Trans World Airlines, Inc are followed when understanding the meaning of the terms
"embarking" and "disembarking".
31


29
Chendrimada v. Air India, 802 F. Supp. 1089, 1092 (1992)
30
Kalish v. TWA, 14 Avi. 17, 936 (1977)
31
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
Duration of Liability of Air Carrier under Warsaw Convention.
Embarking means when the passenger is in the process of boarding the flight. It depends
on location of the passenger, activity of the passenger, control restriction and supervision
of the air carrier over the activity of the passenger and proximity of time and location for
departure. Embarking commences when a passenger is instructed to proceed to the bus for
transportation to the aircraft. In Jeffries v. TWA case it was held by the court that there is a
duty of the carrier to exercise reasonable care to prevent danger from vicious practices by
the third party when the carrier has reasonable opportunity to prevent the danger. In this
case passenger who were checked in were attacked by terrorists while waiting in line to be
searched for boarding. The carrier had already announced the flight and asked passengers
to report to the gate. The court held three factors are important.
32

1) Location of the accident
2) Activity in which the passengers was engaged at the time of the accident
3) Airlines control over the passengers at the time of the accident.
So a loss of baggage during security search is covered by the convention which is
undertaken by the airline agents. Whether an accident has occurred during the process of
embarking or disembarking needs to be seen. Airlines do not operate the airports. So any
accident that happens at the airport the airline will not be liable but the moment the airline
agents gets control of the aircraft like the time when they start checking the boarding
passes, they will be liable for anything that happens after that. Before that if any accident
happens the airport authority will be liable. In Bibabcea c. Air France case the passenger
fell when she was waiting in the international departure lounge. The court held that the
airline is not liable as she has not yet commenced operation of embarking as the carriers
control and the contract of transportation has not commenced. In Upton v. Iran National
Airlines case the passenger has received the boarding pass and was seated in the public
area when the airport roof collapsed. The court held that the airline is not liable as the

32
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
Duration of Liability of Air Carrier under Warsaw Convention.
passenger has not yet entered the operation of embarking because the passenger was free
to leave the building and had not yet entered the controlled situation of the airline.
33

In Air France c. Nicoli case the passenger was struck by the motor vehicle owned by the
airline as she was walking towards her airline. The court held that the airline is liable.
34

In 1973 Hellenikon airport in Athens there was a terrorist attack which left over forty
injured and three passengers dead. In Athens airport the passengers were always subjected
to security check until just prior to boarding the airplane. The passengers received their
boarding passes after their luggage were checked and they have gone through the passport
control. Loudspeakers announced the flight and the passengers had to form two different
lines in front of the departure gate when the terrorist attacked them. It is Days v. TWA case
where the plaintiff did not join the line but were escorted by airline agents. The court
rejected the argument of TWA that the liability under the convention should not attach
while a passenger is inside the airport building and should commence at the earliest when
the passenger steps through the terminal gate in order to board the aircraft. The court
decided that the phrase "in the course of any of the operations of embarking" means that
the passengers must have been engaged in actions that were "a part of the operation or
process of embarkation" and not limited to a particular place where the plaintiffs were
standing when the accident occurred. The tripartite test that is mentioned earlier was
applied and adopted involving the case of embarking within the meaning of Art 17 at the
time of the injury. The test of Days case
35
was uniformly applied and followed by other
courts when considering whether passengers were injured in the course of the operation of
embarking or disembarking. Warsaw Convention excluding from coverage, accidents that
occurred within a terminal as argued by TWA but that was rejected by the court. Treaties
should be interpreted according to the genuine shared expectations of the contracting
parties thus the expectation of the passenger is also important. The court quoted from
Missouri v. Holland case "Words that also are a constituent act ... must be interpreted

33
Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International,
Netherlands, 2000.
34
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
35
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
Duration of Liability of Air Carrier under Warsaw Convention.
knowing that they have called into life as being the development of which could not have
been foreseen completely by the most gifted of its begetters." Protecting the passengers
from modern day hazards of air travel including terrorism should be the present purposes
of the Warsaw Convention. Applying the tort law the court held that the results were
consistent with accident cost allocation as the airline is in a good position to prevent
breaches of security, spread the risk of accident.
36

In Evangelinos v. Trans World Airlines, Inc.
37
case the court rejected the argument by the
airlines that the liability of the aircraft is based on location of the passenger with reference
to the aircraft. The court said the triple test of the Days case has to be applied thus the
location and activity of the passenger, extent of control by the airline over the injured
passenger. In this case the court placed less weight upon the carrier control over
passengers than in Days case. Plaintiff had completed all activities before boarding and was
standing in line at the departure gate ready to proceed to the aircraft. The plaintiff was
injured while the evangelinos families were acting as directed by the TWA before boarding
busses employed by TWA. The announcement was made for final boarding so TWA were
isolated from passengers of other airlines so they were congregated in a specified area
designated by TWA. So the passengers were standing near the departure gate thus TWA
assumed control over the group of passenger which is solely related with embarkation.
TWA ground staff and the security personals of TWA were standing with the passengers
which means TWA had full control over the safety and security of the passengers. We can
conclusively understand that TWA had begun to perform its obligation as a air carrier
under the contract of carriage and thus assumed responsibility for the plaintiffs safety and
protection. The passengers had completed all of the steps for boarding an aircraft which
was 250 meters away from the passengers where they were located; had been segregated
into a group, acted as directed of airline agents; the court concluded that "the operations of
embarking" had begun when the terrorist attack took place. The court distinguished the
Evangelinos case from other cases based on the element of airline control over the
passengers. The court held that control of the airline remains equally important as well as

36
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
37
Ibid.
Duration of Liability of Air Carrier under Warsaw Convention.
the location and activity. A standard based on three factors seemed for the court to be the
best to calculate the policies underlying the policies under Art 17. In both Days case and
Evangelinos the court placed much weight upon the location of the passenger at the time of
the injuries, nature of the activities that the passenger were engaged at that time which has
to be the prerequisite for boarding the airlines to the actual physical boarding of the
aircraft. So from these two case we can say that embarking commenced as early as when
the passenger first present himself to the aircraft at the terminal building for the purpose
of checking in for the flight and thereafter proceeding with those activities necessary to be
physically present on board the aircraft as directed by the carrier. So a passenger has been
denied entry into the aircraft after he had severe medical problem was held to be in the
process of embarking as the passenger had proceeded beyond the boarding gate and was
close to the door of the aircraft when he was denied boarding.
38
Is the cause of the accident
a hazard of air travel? Control is the decisive factor, as long as the other two factors are
met. In Upton case court held that the passengers were not under the control of the airline
and were in a public area of the airport. Buonocore case
39
redefined the Days test. In 1985
there was a terrorist attack on Rome's Leonardo da Vinci airport. passenger Buonocore
after checking his luggage and obtaining a boarding pass walked towards the public area of
the airport when the attack took place. Court applied the result but came to a different
result. The court held that the Buonocore was not acting according to the directions of TWA
as his movements was unrestricted towards other parts of the airport and not towards the
gate when boarding was required. The passenger could not recover under such
circumstances. The passenger who was a victim of the terrorist attack has not been
embarking when he was required to do so even though luggage were checked and boarding
passes were obtained. He was not in immediate proximity of the ground staff or the airline
agents or was in the process of embarking. In Buonocore court listed factors
40
and they are
(1) Immediate physical proximity of the gate exclusively for the passengers of that flight;
(2) They were acting at the direction of the airline;
(3) They were engaged in one of the activities necessary to be on board the aircraft;

38
Patel v. British Airlines, 30 Avi. 16, 379 (E.D.N.Y. 2005)
39
Buonocore v. TWA, Inc., 900 F. 2d 8, 10 (1990)
40
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
Duration of Liability of Air Carrier under Warsaw Convention.
(4) Restriction on freedom of movement of the passenger.

Disembarking starts when the passenger exits the aircraft and proceeds towards the bus
and the disembarking ends when he reaches the public area. Any injury caused by an
accident during this process in compensable as per Warsaw. During disembarking if a
passenger falls from the aircraft after the portable stairs are removed or if a passenger
slipped as the stairs were wet and flight attendant not helping leading to injury then carrier
will be liable. If the passenger is accompanied by an air hostess to the terminal in an
unauthorized route and if the passenger falls in a construction hole then the airline will be
liable. Falling on a slippery floor near customs, the carrier will not be liable as the
passenger were in an area where the airline had no control. If the passengers were
attacked by terrorists when they have presented passports for immigration, the airline will
not be liable.
41
If the passenger has not reached the location inside the terminal then airline
is still liable for the injuries as the suffered while under the control of the airline. Airline
will be liable if the passenger in injured while he is transported by bus to the terminal but if
the injuries are sustained on his way to the passport control booth which is under the
management of the airport authorities then airline will be not liable. Passengers injured
inside a terminal while proceeding toward connecting flights after disembarking, will not
be protected. By the time when the airline has deposited him at a safe point inside the
terminal building then it may be considered that the passenger is free from all the risks
inherent to air travel. The courts apply the same principal when it comes to disembarking
as they apply when it comes to embarking. Thus the location of the activity, the control as
to whether the passenger is engaged in the operation of disembarking at the time when the
injury is caused.
42
MacDonald v. Air Canada
43
case defined what is disembarking. In this
case the passenger fell in the baggage delivery and customs clearance area at Boston
International Airport. The court defined disembarking as passenger has descended from
the plane by the use of the stairs which have been supplied and has reached a safe point
inside the terminal even though he may remain in the status of a passenger of the carrier

41
Martinez Hernandez v. Air France, 545 F. 2d 279 (1976)
42
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
43
439 F.2d 1402 (1971)
Duration of Liability of Air Carrier under Warsaw Convention.
while inside the building. She was entitled for compensation as Mrs MacDonald was
standing near the baggage pick up area waiting for her daughter to recover her luggage.
Mrs MacDonald was therefore not acting as a passenger not under the guidance of the
ground staff of the airlines and was free to move around in the terminal. She was thus not
performing the act required for disembarking. Warsaw did not apply to the claims for
injuries suffered after the passenger had reached the airport terminal building. Court in
this case focused on the location of the arriving passenger at the baggage retrieval area
when she fell and so she had already finished the process of disembarking.
44

In another case Maugnie v. Compagnie National Air France a passenger fell as she
proceeded down the passenger corridor leading from the gate to the main gate of the
terminal building after she came down from her Air France flight to proceed to an another
connecting flight. The court held that she was not in the process of disembarking as she
was acting on her own direction and no longer under the direction or control of Air France.
She had completely disembarked within the meaning of Art 17. Control is an evaluating
factor when it comes to location and activity. In MacDonald case the court focused on the
location to conclude that the passenger had already disembarked.
45

In Martinez Hernandez v. Air France case it was held that in MacDonald case the court
viewed the nature of the passengers activity, location and the extend to which the air
carrier was exercising control over the passenger at the time of the injury. The court also
held that the process of embarking and disembarking is a physical activity of entering or
exiting from an aircraft and the carrier will not be liable for injuries associated with the
various activities before or after the flight. In this case the passenger was attacked in the
baggage area of the terminal building. The passenger had emerged from the aircraft,
descended the stairs, travelled via bus to the terminal, presented his passport to the Israeli
authority and then passed through the passport control. The airline was not in control of
the passengers and the passengers were only waiting to pick up the luggage so the
passengers had finished the course of dismemberment so the carrier is not liable. If the

44
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
45
Ibid.
Duration of Liability of Air Carrier under Warsaw Convention.
passengers were attacked by terrorist when they were coming down the stairs or in the
bus then carrier will be liable for bodily injury caused by the accident.
46
If a passenger
needs a wheelchair and due to negligence of the airline the passenger suffers a heart attack
in the terminal then the airline will be liable because it is connected with the willful
negligence of the carrier, the ground staff and the incident of heart attack is connected with
disembarking but if a van is provided and due to sudden slamming of breaks the passenger
is injured due to fall then also the carrier will be liable. A passenger who falls from an inter
terminal bus while proceeding from the international terminal to the domestic terminal for
the continuation of a journey were held to be in the course of disembarking. Fall from a bus
while going towards the terminal was held to be in the course of disembarking. In
Bergsman v. El Al Israel Airlines
47
case the court held that Warsaw applies to passenger
injury claim arising from an accident in a waiting room even though the passenger at the
time of the injury has not commence the process of embarking or disembarking.
Examples of non embarking event.
48

1) A passenger falls on a moving sidewalk in the terminal or when the passenger is
with the other common passengers in the terminal. A passenger injured on a moving
walkway in an unrestricted area far away from boarding time or gate. Injured in an
escalator in a public area or an altercation at the main terminal counter involving
the refusal of a passenger to have his checked baggage searched resulting in his
arrest.
2) A passenger killed by a terrorist attack as he way moving freely in the airport two
hours before the flight. Passenger injured while walking to the passport control or a
person waiting for a shuttle bus was not embarking as she was still in the public
area.


46
Lawrance B Goldhirsch, Warsaw convention, Annotated Legal Handbook, Kluwar Law International,
Netherlands, 2000.
47
10 Avi. 17, 346 (1967)
48
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
Duration of Liability of Air Carrier under Warsaw Convention.
Examples of Embarking events.
49

1) A transit passenger proceeding towards the departure gate or a passenger fell from
an inter terminal bus. A fall from the mobile lounge while reroute to the aircraft, or a
passenger tripped on the stairs leading from the departure area of the terminal to
the tarmac where the aircraft was boarding passenger.
2) An assault of a passenger by an airline employee in an area open to only ticked
passengers.
Examples where disembarking is complete.
50

1) Terrorist attack in the baggage retrieval area or attack on passenger after clearing
immigration on the way to the baggage retrieval area. Attacked on the way to the
immigration or the baggage area.
2) Passenger falls on an escalator after baggage retrieval. Falls when she was on the
way to the connecting flight when she was not acting on the instruction of Air
France. Injured when moving to the side walk after emerging from her aircraft
leaving the area of the arrival gate and entering the pubic area.
Conclusion.
Liability of the airline for dismemberment ends the moment the passenger is safely
deposited in the terminal building where no mandatory airline instructions need to be
followed. Warsaw regime suffers from problems like it affords more protection to baggage
than to passengers leaving many victims uncompensated. Strict application like the
moment the passenger is inside the terminal gate the control of the airline is over creates
the problem of under compensation so a more inclusive definition of "embarking" and
"disembarking" is required. The control area should be only limited to the moment the
airlines announces the passenger to congregate at the gate and should not extend to other
areas of the airport like parking lots, canteen, and the airport-access roads as if they are
included it will be unfair the part of the airlines. Moreover the passenger, whose luggage is

49
George N Tompikins Jr, Liability rules applicable to international air transportation as developed by courts
in United States, Kluwar Law International, Netherlands, 2010.
50
Ibid.
Duration of Liability of Air Carrier under Warsaw Convention.
checked and has obtained a boarding pass, is no longer free to move about after completing
his or her check-in. the moment the passenger is subject to the instructions of the airline he
is under the control of the carrier. Here the word instruction and not announcement by the
airline, needs to be kept in mind. So if the passenger gets a boarding pass then it may be
said that the process of boarding has started. Liability of the airlines should be limited to
cases where passengers are inside the terminal and engaged in any of the steps towards
embarking or disembarking. Liability of an airline is terminated when the passenger has
crossed the area of the airport controlled by the airline. This also applies in case of
emergency landing in a different airport.
51


The purpose of the convention is to protect the infant industry from major claims that may
financially ruin the industry. According to Article 17 the carrier is liable for damages
caused by an accident so it was meant to cover the inherent risks of air travel and not every
kind of risks to a passenger. This is true as the definition was narrowed down in the Saks
decision. The court could not answer whether the strict application or a wider application
be followed. What is an unexpected or unusual event and external to the passenger and
does it have some causal connection to the operation of the aircraft or is it just an inherent
risk in air travel. The passengers knowing about the limited liability take additional
insurance to protect themselves where damages are not covered by the carriers liability.
The aviation industry is expanded after 1929 and liability lust be increased. Mental injury
caused exclusively without physical injury must now be included. Mental injury when it
comes to terrorist attacks is very important. If the terrorist has gained control over the
aircraft and has killed some passenger then such event may cause mental trauma or if the
flight has been captured by the terrorist for many days without food or water then mental
trauma is caused thus must be recoverable. Service given by the flight attendants are an
integral part of the operation of the aircraft so a carrier is liable acts or omissions by the
flight attendants. A passenger who purchases a flight ticket thus in a contract expects
general standards to be followed so a passenger expects the crew to assist him in a prudent

51
M. Veronica Pastor. ABSOLUTE LIABILITY UNDER ARTICLE 17 OF THE WARSAW CONVENTION: WHERE
DOES IT STOP? Heinonline, 26 Geo. Wash. J. Int'l L. & Econ. 575 1992-1993.
Duration of Liability of Air Carrier under Warsaw Convention.
manner during the flight. Negligent and omission on the part of the crew will make the
carrier liable and damage the reputation of the carrier.
52


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8) Paul Stephen. International Air Carrier Liability: The Montreal Convention of 1999,
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9) Christopher E. Cotter. Recent Case Law Addressing Three Contentious Issues in the
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13
th
Oct 2012.


52
Nutt, Kathryn M. "Air France v. Saks: An Accidental Interpretation of the Warsaw Convention." American
University International Law Review 1, no. 1 (1986): 195-213.
Duration of Liability of Air Carrier under Warsaw Convention.