UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2282
EILEEN M. McCARTHY,
Plaintiff, Appellant,
v.
NORTHWEST AIRLINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Marvin H. Greenberg, with whom Bonnie L. Karshbaum was on
brief, for appellant.
Patricia A. Wilson, with whom John J. Bonistalli was on
brief, for appellee.
May 31, 1995
SELYA, Circuit Judge. Following an accident that
SELYA, Circuit Judge.
occurred in the course of international air travel, plaintiff-
appellant Eileen M. McCarthy filed a suit for damages against
defendant-appellee Northwest Airlines, Inc. (Northwest).
Concluding that the Warsaw Convention stood in the way, the
district court grounded the suit. See McCarthy v. Northwest
Airlines, Inc., 862 F. Supp. 17 (D. Mass. 1994). Plaintiff
appeals. We affirm.
I. BACKGROUND
I. BACKGROUND
Because the district court granted summary judgment in
the defendant's favor, we array the material facts in a way that
puts the best face on the plaintiff's claims without distorting
them.
On July 2, 1990, the plaintiff and her sister departed
Boston via Northwest en route to the Orient. They flew to Tokyo
and stayed for four days. At that point their itinerary called
for them to fly to Osaka and then on to China. The sisters
repaired to the airport and, since they had not yet obtained
boarding passes, they joined a queue that had formed at the
Northwest ticket counter.
When the sisters reached the desk, they expressed
uncertainty about whether time had grown too short. The
plaintiff claims that they told the Northwest ticket agent that
they were perfectly willing to take a later flight in order to
avoid rushing. The agent brushed aside their concerns, tagged
their luggage, issued boarding passes, and led them "at a fast
2
trot" in the general direction of the customs area. Still
following the agent (who retained possession of their passports,
tickets, and boarding passes), the sisters took an escalator
accessible to the general public from one level of the terminal
building to a lower level. The escalator malfunctioned and
McCarthy fell.
Although the plaintiff sustained an injury, she
proceeded through customs, entered a bus that drove her to the
approximate point of departure, and thereafter boarded the
airplane that took her to Osaka. She continued on to China as
she had planned. Upon her return to the United States, she
consulted a physician who determined that she had broken her
knee. The doctor's diagnosis led to both a lengthy convalescence
and a suit for damages.1
II. THE SUMMARY JUDGMENT STANDARD
II. THE SUMMARY JUDGMENT STANDARD
Summary judgment has a special niche in civil
litigation. Its "role is to pierce the boilerplate of the
pleadings and assay the parties' proof in order to determine
whether trial is actually required." Wynne v. Tufts Univ. Sch.
of Med., 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113 S.
Ct. 1845 (1993). The device allows courts and litigants to avoid
full-blown trials in unwinnable cases, thus conserving the
parties' time and money, and permitting courts to husband scarce
1McCarthy originally sued Northwest on both negligence and
strict liability theories. Following an adverse ruling in the
district court, she abandoned the negligence claim.
Consequently, her appeal concerns only her strict liability
claim.
3
judicial resources.
A court may grant summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We have discussed this rule in a cascade of cases, see,
e.g., Coyne v. Taber Partners I, F.3d , (1st Cir.
1995) [No. 94-2231, slip op. at 4-5]; National Amusements, Inc.
v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), petition for
cert. filed, 63 U.S.L.W. 3736 (U.S. Apr. 4, 1995) (No. 94-1630);
Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); Wynne, 976
F.2d at 794; United States v. One Parcel of Real Property (Great
Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.
1992); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 351-52
(1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st
Cir. 1990); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d
5, 7-8 (1st Cir. 1990); Garside v. Osco Drug, Inc., 895 F.2d 46,
48-49 (1st Cir. 1990), and it would serve no useful purpose to
rehearse all the particulars of those discussions. For purposes
of this case, it suffices to outline the manner in which the rule
operates.
Once a properly documented motion has engaged the gears
of Rule 56, the party to whom the motion is directed can shut
down the machinery only by showing that a trialworthy issue
exists. See National Amusements, 43 F.3d at 735. As to issues
4
on which the summary judgment target bears the ultimate burden of
proof, she cannot rely on an absence of competent evidence, but
must affirmatively point to specific facts that demonstrate the
existence of an authentic dispute. See Garside, 895 F.2d at 48.
Not every factual dispute is sufficient to thwart summary
judgment; the contested fact must be "material" and the dispute
over it must be "genuine." In this regard, "material" means that
a contested fact has the potential to change the outcome of the
suit under the governing law if the dispute over it is resolved
favorably to the nonmovant. See One Parcel, 960 F.2d at 204. By
like token, "genuine" means that "the evidence about the fact is
such that a reasonable jury could resolve the point in favor of
the nonmoving party . . . ." Id.
When all is said and done, the trial court must "view
the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party's favor," Griggs-Ryan, 904 F.2d at 115, but paying no
heed to "conclusory allegations, improbable inferences, [or]
unsupported speculation," Medina-Munoz, 896 F.2d at 8. If no
genuine issue of material fact emerges, then the motion for
summary judgment may be granted.
Because the summary judgment standard requires the
trial court to make an essentially legal determination rather
than to engage in differential factfinding, appellate review of
an order granting such a motion is plenary. See Pagano, 983 F.2d
at 347; Garside, 895 F.2d at 48.
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III. DISCUSSION
III. DISCUSSION
We bifurcate the body of our opinion. First, we
explicate the Warsaw Convention, the etiology of Article 17, and
the accepted analytic approach to Article 17 cases. Next, we
shine the light of our gleaned understanding on the case before
us.
A. The Legal Landscape.
A. The Legal Landscape.
Generally speaking, the Warsaw Convention, formally
known as the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929,
49 Stat. 3000, T.S. No. 876 (1934), note foll. 49 U.S.C. app.
1502,2 arose out of a perceived need to provide a fledgling
industry with a uniform set of legal rules that would govern
accidents occurring in international air travel. Under the
Convention, air carriers are absolutely liable, up to a preset
monetary ceiling, for any accident in which a passenger suffers
bodily injury or death as long as the accident "took place on
board the aircraft or in the course of any of the operations of
embarking or disembarking." Id., art. 17, 49 Stat. at 3018.
"Treaty interpretation is a purely legal exercise," In
re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993),
2The United States initially adhered to the Warsaw
Convention on October 29, 1934. Except as otherwise specifically
indicated, however, all references to the Convention in this
opinion are to the document as modified by the Montreal
Agreement, formally known as the Agreement Relating to Liability
Limitations of the Warsaw Convention and the Hague Protocol, CAB
Agreement 18900, note foll. 49 U.S.C. app. 1502 (approved by
CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302).
6
but the terms "embarking" and "disembarking" as used in this
treaty are less than mathematically precise. Just as legislative
history can inform the meaning of an inexact statute, however,
so, too, can the history of a treaty inform its meaning. See
Cook v. United States, 288 U.S. 102, 112 (1933). Thus, we look
back in time to gain a better comprehension of the language that
the drafters employed.
The Warsaw Convention was the product of ponderous
deliberation. Conferees who met in Paris in 1925 appointed a
committee of experts, the Comit Internationale Technique
d'Experts Juridique A riens (CITEJA), to prepare a suggested
accord. CITEJA's recommendations were considered at a second
conference, held in Warsaw in 1929. CITEJA recommended extending
accident coverage to passengers "from the time [they] enter the
airport of departure until the time when they exit from the
airport of arrival." Minutes, Second International Conference on
Private Aeronautical Law, October 4-12, 1929, Warsaw 171 (R.
Horner & D. Legrez trans. 1975) (Warsaw Minutes). The breadth of
the proposed language inspired heated debate. See, e.g., Warsaw
Minutes at 49; see also Day v. Trans World Airlines, Inc., 528
F.2d 31, 35 (2d Cir. 1975) (reviewing history of Article 17),
cert. denied, 429 U.S. 890 (1976).
In an effort to accommodate conflicting views, a French
delegate, Prof. Georges Ripert, suggested that the article should
"employ a general formula `during air carriage' in leaving to the
courts the duty of deciding in each case if one is within the
7
contract of carriage." Warsaw Minutes at 73; see also Martinez
Hernandez v. Air France, 545 F.2d 279, 283 (1st Cir. 1976)
(discussing Ripert proposal), cert. denied, 430 U.S. 950 (1977).
The delegates embraced Ripert's idea, see Warsaw Minutes at 83,
and the drafting committee couched the compromise in
substantially the formnow embodied in Article 17. See id. at 166.
The single substantive issue presented in this appeal
is whether plaintiff was injured while "embarking" within the
meaning of Article 17. Though the Supreme Court has not yet had
occasion to define the words "embarking" or "disembarking" in the
context of Article 17, the Court has generally read Article 17
parsimoniously. See, e.g., Eastern Airlines, Inc. v. Floyd, 499
U.S. 530, 552 (1991) (holding that Article 17 does not allow
recovery for harm unaccompanied by some physical manifestation of
injury); Air France v. Saks, 470 U.S. 392, 406 (1985) (adopting
restrictive definition of "accident" for purposes of Article 17).
This restraint is entirely understandable as Article 17 provides
for strict liability, and there are sound policy reasons to
confine that liability to the letter of the text, narrowly
construed. See Eastern Airlines, 499 U.S. at 552. The terms
"embarking" and "disembarking" are not infinitely elastic, and we
believe it is quite probable that, when the occasion to interpret
those terms arises, the Court will prove to be similarly
restrained in defining them. Cf. Chan v. Korean Air Lines, Ltd.,
490 U.S. 122, 128 (1989) (holding that Article 3(2) deprives a
carrier of the Warsaw Convention's Article 3 damages limitation
8
only if the carrier fails to deliver a ticket altogether).
Given the historical record and the signals that the
Supreme Court has sent, most courts have interpreted the terms
"embarking" and "disembarking" to connote a close temporal and
spatial relationship with the flight itself. In the process,
these courts have found a three-pronged inquiry to be useful.
The inquiry focuses on (1) the passenger's activity at the time
of injury, (2) his or her whereabouts when injured, and (3) the
extent to which the carrier was exercising control at the moment
of injury. See, e.g., Schroeder v. Lufthansa German Airlines,
875 F.2d 613, 617 (7th Cir. 1989); Evangelinos v. Trans World
Airlines, Inc., 550 F.2d 152, 155 (3d Cir. 1977) (en banc);
Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1261-62
(9th Cir. 1977), cert. denied, 431 U.S. 974 (1978); Day, 528 F.2d
at 33. We, too, have noted that such considerations are highly
relevant in determining the applicability of Article 17. See
Martinez Hernandez, 545 F.2d at 282. We do not view the three
factors activity, location, and control as separate legs of a
stool, but, rather, as forming a single, unitary base. In the
last analysis, the factors are inextricably intertwined. Cf.
Evangelinos, 550 F.2d at 155 (observing that control "is an
integral factor in evaluating both location and activity").
What is more, the language of Article 17 which speaks
to accidents that occur "in the course of any of the operations
of embarking" strongly suggests that there must be a tight tie
between an accident and the physical act of entering an aircraft.
9
See Martinez Hernandez, 545 F.2d at 283-84 (concluding that the
drafters of the Warsaw Convention understood embarking "as
essentially the physical activity of entering" an airplane); see
also Evangelinos, 550 F.2d at 155. This "tying" concept informs
location as well as activity. Consequently, for Article 17 to
attach, the passenger must not only do something that, at the
particular time, constitutes a necessary step in the boarding
process, but also must do it in a place not too remote from the
location at which he or she is slated actually to enter the
designated aircraft. See Martinez Hernandez, 545 F.2d at 283;
Day, 528 F.2d at 33.
B. Analysis.
B. Analysis.
In applying these principles to the case at hand, we
deem it useful to start by considering specific examples of
accidents that have been found to come within the encincture of
Article 17. Perhaps the most venturesome of the reported
appellate decisions are Day and Evangelinos. When passengers had
surrendered their tickets, passed through passport control,
entered the area reserved exclusively for those about to depart
on international flights, and queued up at the departure gate a
prerequisite to boarding the Second Circuit ruled that they
were engaged in performing a necessary step in the boarding
process. Thus, Article 17 applied to an ensuing injury. See
Day, 528 F.2d at 33. Similarly, when passengers "had completed
virtually all the activities required as a prerequisite to
boarding, and were standing in line at the departure gate ready
10
to proceed to the aircraft" at the time of the accident, the
Third Circuit found them to have been engaged in a necessary step
in the boarding process. See Evangelinos, 550 F.2d at 156.
Hence, Article 17 applied.
The case at bar is of a significantly different genre.
The plaintiff here, unlike the plaintiffs in Day and Evangelinos,
had yet to fulfill most of the conditions precedent to boarding;
at the time of the accident, she had not left the common area of
the terminal, located the bus that would transport her to the
vicinity of her assigned aircraft, reached an area restricted to
travelers, nor isolated herself from the throng of other
passengers flying to other destinations. In addition, the
activity in which the plaintiff was engaged at the time of injury
proceeding on an escalator from one level of the terminal's
common area to another cannot in any sense be seen as
comprising a necessary step in the boarding process. In both
Evangelinos and Day, the only way passengers could have entered
the designated aircraft was to pass through the departure gate at
which the injury occurred. See Evangelinos, 550 F.2d at 156;
Day, 528 F.2d at 33. In sharp contrast, the record in this case
does not contain the slightest hint that the plaintiff could only
have reached her assigned aircraft by taking the particular
escalator from which she fell.
Last but far from least the accident here, unlike
in Evangelinos and Day, happened at a considerable distance from
the departure gate and well before any actual embarkation was
11
possible. In other words, plaintiff's fall was far removed from
the act of embarkation, both temporally and spatially. Most
importantly, it took place in a part of the terminal not
restricted to passengers. We believe it is no mere happenstance
that the plaintiff has not cited and we have been unable to
deterrate a single instance in which Article 17 has been found
to cover an accident that occurred within the public area of a
terminal facility.
A typical case is Buonocore v. Trans World Airlines,
Inc., 900 F.2d 8 (2d Cir. 1990), in which the court held that,
although the plaintiff had checked in at the ticket counter,
Article 17 did not cover an ensuing injury sustained in a public
area "nowhere near the gate." Id. at 10. So, too, in Rolnick v.
El Al Israel Airlines, Ltd., 551 F. Supp. 261 (E.D.N.Y. 1982),
the plaintiffs "had checked their baggage and obtained their
boarding passes, but had not yet gone to passport control" when
an accident occurred on an escalator within the terminal
building. Id. at 262-63. On these facts, the court determined
that the plaintiffs were not "embarking" within the purview of
Article 17.
The disembarkation cases are grouped along a comparable
axis. See, e.g., Maugnie, 549 F.2d at 1262 (holding Article 17
inapplicable where passenger had deplaned and accident occurred
in a common passenger corridor of Orly Airport); Martinez
Hernandez, 545 F.2d at 282 (holding Article 17 inapplicable where
at the time of injury the passengers had traveled by bus or on
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foot from the aircraft to the terminal); see also Schmidkunz v.
Scandinavian Airlines Sys., Inc., 628 F.2d 1205, 1207 (9th Cir.
1980); Knoll v. Trans World Airlines, Inc., 610 F. Supp. 844,
846-47 (D. Colo. 1985).
Although both the nature of the activity and the
location of the accident stand as obstacles in her path,
plaintiff, relying primarily on a dictum contained in Martinez
Hernandez (suggesting that "the scope of article 17 should be
limited to those situations either where the carrier has taken
charge of the passengers, or possibly where it customarily would
have done so," 545 F.2d at 283 n.4), argues that Article 17 is
nonetheless available because Northwest had "absolute control"
over her once its agent had "confiscated" her passport, ticket,
and boarding pass. This attempt to fly over hostile territory
ends in a crash landing.
In the first place, after we discard the rhetorical
flourishes and focus on the facts, see, e.g., Medina-Munoz, 896
F.2d at 8 (warning that "conclusory allegations" are not enough
to defeat summary judgment), it becomes readily evident that the
plaintiff was not under the airline's "control" in any meaningful
sense. McCarthy produced no evidence tending to show that she
was obliged to take the escalator on which she fell as a
prerequisite to embarking. Likewise, she produced no evidence
suggesting that the ticket agent refused a timely request to slow
down or to return her travel documents. If the plaintiff did not
desire to follow the agent down the escalator "at a fast trot,"
13
she had the ability to proceed at her own pace, to take an
alternate route, or simply to await a later flight.
In the second place, even were we to conclude that the
agent's peremptory instructions, coupled with the possession of
plaintiff's travel documents, constituted a kind of "control,"
this, alone, would not be enough to bridge the moat that
surrounds Article 17. If it were, the Day/Evangelinos test would
be a hoax, for two of its three prongs activity and location
would be rendered inoperative, and the third control would
lack the nexus with the others that informed the final version of
Article 17. At bottom, plaintiff's activity had only an
attenuated connection with entering an aircraft, and it is
augmented by nothing more than an indulgent interpretation of
control. Thus, these factors cannot overcome the remoteness of
the accident site from the aircraft.
In the third place, if the Martinez Hernandez dictum is
accorded the meaning plaintiff ascribes to it, then it is broadly
overinclusive and we reject it. But we think that the plaintiff
reads the dictum through rose-colored glasses. After all, the
Martinez Hernandez court held that Article 17 did not apply on
the facts of that case, see 545 F.2d at 282, and this holding
indicates that the court never intended to throw open the gates
of Article 17 as widely as McCarthy suggests. Nor has any other
court done so.3 We will not be the first.
3To be sure, a somewhat similar dictum is found in Knoll,
where the court wrote of judicial reluctance to extend coverage
under the Warsaw Convention "to injuries incurred within the
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IV. CONCLUSION
IV. CONCLUSION
Having dismissed the notion that the Martinez Hernandez
dictum demands a repudiation of the result reached by the court
below, we taxi toward the hangar. Scrutinizing the evidence of
record in the ambience most soothing to the plaintiff, and
applying settled legal principles, a rational jury could not find
that, at the time of the injury, McCarthy was "embarking" within
the purview of that term as it is used in Article 17 of the
Warsaw Convention.
We need go no further; the lower court appropriately
granted Northwest's motion for brevis disposition.
Affirmed.
Affirmed.
terminal, except in those cases in which plaintiffs were clearly
under the direction of the airlines." Knoll, 610 F. Supp. at 846
(emphasis supplied). But in Knoll, as in Martinez Hernandez, the
court's holding belies the implication that McCarthy seeks to
derive from it. To be specific, the court held that Knoll was
not embarking where, after airline agents advised passengers to
proceed to immigration, she slipped as she approached that area.
Id. at 847. In so holding, the court stressed that the many
activities yet to be performed, e.g., proceeding through
immigration and customs, were not conditions imposed by the
airline, but, rather, were conditions imposed by the host country
in which plaintiff was traveling. See id.
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