McCarthy v. Northwest Airlines, Inc.

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.

5

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

12

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

14

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.

15