into force May 14, 1976) relating to interim arrangements for scheduled air services and amending the nonscheduled air service agreement of September 27, 1973 (TIAS 7819; 25 UST 659).

The main features of the interim agreement are as follows:

-The Yugoslav Airline (JAT) is authorized to operate two nonstop roundtrip flights per week between New York and Belgrade.

- Pan American World Airways (PanAm)-already serving Yugoslavia by special permit since 1964-is authorized to operate three roundtrip flights per week to Belgrade via Frankfurt.

PanAm and JAT are required to work out mutual general sales agency agreements because of certain restrictions placed on PanAm in Yugoslavia including its ticket sales in local currency. These arrangements regulate sales by JAT in the United States as well as PanAm sales in Yugoslavia.

-The 1973 agreement on charter services between the United States and Yugoslavia is amended and restrictions placed on the total number of charter flights authorized for JAT.

- This agreement and the 1973 charter agreement are to expire on March 31, 1977.

§ 3

Aircraft Crimes

U. S.-Cuba

Bilateral Agreements

On October 15, 1976, Cuba formally denounced the U.S.-Cuba Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses, dated February 15, 1973 (TIAS 7579; 24 UST 737). The denunciation was made pursuant to the six-months clause of the agreement, to take effect on April 15, 1977. It was transmitted to the United States via the Swiss Embassy in Cuba, as representative of U.S. interests in Cuba.

The reasons for the Cuban decision were declared to be those stated by Prime Minister Fidel Castro in his speech of October 15 concerning the crash of a Cubana Airlines aircraft near Barbados on October 6, in which 73 persons were killed. Prime Minister Castro attributed responsibility for the crash to the United States, and in particular to the Central Intelligence Agency.

Secretary Kissinger categorically denied any U.S. responsibility for the crash. In a news conference on October 15, he stated:

First, in my speech to the United Nations I condemned terrorism as an instrument of national policy pursued by any nation, for whatever cause. The United States is not engaged in any activity of this kind, and the charge by Fidel Castro that the United States or its government or any agency of the government had anything to do with the explosion of that airliner is totally false.

Secondly, we think that it is an act of complete irresponsibility to encourage hijacking at this moment at a time when... one of the biggest of human problems is the taking of hostages that cannot possibly influence political decisions or foreign policy decisions. we will hold the Cuban Government accountable for any actions that result from their decision.

Dept. of State Bulletin, Vol. LXXV, No. 1950, Nov. 8, 1976, pp. 573-574. Immediately after the Cubana crash the United States offered the Government of Barbados, which was investigating for possible sabotage or mechanical malfunction, the technical assistance of the National Transportation Safety Board to help in the investigation. Dept. of State Press Briefing, DPC 191, Oct. 8, 1976.

84

Private Air Law

Warsaw Convention

Liability of Carrier

Krystal v. British Overseas Airways Corporation, 403 F. Supp. 1322 (1975), was an action brought by airline passengers against the airline under the Warsaw Convention (TS 876; 49 Stat. 3000) to recover for physical and psychological injuries incurred when an airplane was hijacked en route from Bombay to London in 1974. On cross motions for summary judgment, the U.S. District Court for the Central District of California held, on September 18, 1975, that recovery for mental distress was permitted under the Warsaw Convention.

The Court based its opinion on the effect of the Montreal Agreement of 1966 on article 17 of the Warsaw Convention. It stated:

This Court is of the opinion that the effect of the Montreal Agreement is to permit recovery for mental distress. Under the Agreement, the signatory airlines agreed, inter alia, that they would print on their tickets a notification to the passenger of the possible applicability of the Warsaw Convention. The Civil Aeronautics Board Order which set out the terms of the agreement repeated the phrasing of art. 17 in noting the basis for recovery. 31 Fed. Reg. 7302 (1966). But the actual notice to which the airlines agreed changed the relevant wording to "death . . . or personal injury

It appears that such notice is determinative of the issue. The fact that "wounding . . . or bodily injury" is replaced by "personal injury" in a document intended to notify passengers of the extent of airline liability, suggests an intention to clarify the type of injury which is compensable

This Court is, of course, aware that other courts have reached contrary conclusions.

This Court is of the opinion that such interpretations of art. 17 are untenable. It cannot be said, with finality, that the drafters of the Warsaw Convention intended to preclude recovery for mental distress.

In short, this Court considers that the wording of the Warsaw Convention is subject to more than one interpretation on its face. When taken in conjunction with the modification appearing in the notice to passengers dictated by the Montreal Agreement, the comprehension of article 17 must be read to include mental injuries.

On October 12, 1976, the Supreme Court denied certiorari in Trans World Airlines, Inc. v. Day, No. 75-1354, 45 U.S. Law Week 3273 (1976). It thus left standing the ruling of the U.S. Court of Appeals for the Second Circuit in Day v. Trans World Airlines, Inc., 528 F.2d 31 (1975), that TWA was liable for injuries to passengers in a terrorist attack at Hellenikon Airport in Athens in 1973, which occurred while the passengers were at the terminal's departure gate. The U.S. Court of Appeals held that the terrorist attack in the terminal building was committed in the course of the operations of embarking within the meaning of article 17 of the Warsaw Convention (49 Stat. 3000; TS 876).

The Supreme Court's denial of certiorari accorded with the suggestion of Solicitor General Robert H. Bork, who filed an amicus curiae brief reading, in part, as follows:

In our view, boarding procedures that take place within an air terminal building can constitute "operations of embarking" within the meaning of article 17 of the Warsaw Convention. We believe that the contrary view espoused by petitioner, i.e., that the phrase "operations of embarking" refers only to those boarding procedures that take place outside the physical confines of the air terminal building, would unjustifiably restrict the intended operation of the Convention and the subsequent Montreal Agreement. The purpose of the Warsaw Convention. . . is to regulate "in a uniform manner the conditions of international transportation by air in respect of the documents used for such transportation and of the liability of the carrier." In connection with the second of its two objectives, the uniform regulation of carrier liability, the Convention specifies, inter alia, the circumstances under which a presumption of liability arises (articles 17, 18, and 19), the defenses available to the carrier to rebut that presumption (articles 20 and 21), and the maximum monetary liability per passenger (articles 22 and 23). Article 17 provides a presumption of liability "if the accident which caused the [injury] took place on board an aircraft or in the course of any of the operations of embarking or disembarking."

The legislative history of the Convention is instructive as to the meaning of article 17 . . . .

This history clearly demonstrates that the delegates did not intend the presumption of article 17 to cover all accidents to passengers within air terminals; such broad coverage was proposed by CITEJA [Comite Internationale Technique d'Experts Juridique Aeriens] and was specifically rejected. . . . It seems clear that, in doing so, the conference deliberately eschewed a brightline test in favor of a more flexible formulation. Under that formulation, whether an activity constitutes "any of the operations of embarking" necessarily would be. . . "a question of fact which the courts will have to resolve."

It may well be that the delegates, or a majority of them, did not envision that "any of the operations of embarking" could take place within an air terminal. In using that phrase, undoubtedly they had in mind the boarding procedures that prevailed at the timeprocedures that apparently entailed little more than walking across the traffic apron and mounting a ladder. But boarding procedures have changed enormously since 1929, and the words chosen by the delegates must be applied to circumstances different from any they could have imagined. .

Moreover, the delegates did not intend to freeze into the language of the Convention a test of liability reflecting the thenexisting techniques of embarkation. They did not, for example, specify that liability could attach only when the passenger emerged from the air terminal or mounted the boarding ladder, although they could easily have done so. Instead, they chose a formulation broad enough to encompass changing conditions and to allow the relevance of specific facts to be considered on a case-bycase basis.

Accordingly, it seems plain that the arbitrary rule urged by petitioner, that liability can never attach until after the passenger has emerged from the air terminal, must be rejected. It has no basis in the language of the Convention, it is not supported by the legislative history, and it is not relevant to modern conditions.

we believe that the question whether an accident occurred "in the course of any of the operations of embarking" must turn upon a close analysis of the particular facts and not upon the brightline test offered by petitioner. The courts below adopted "a tripartite test based on activity (what the plaintiffs were doing), control (at whose direction) and location." . . . These factors, together with timing, i.e., the temporal proximity of the accident to scheduled boarding or actual deplaning, appear to us to be the appropriate ones to be considered. The objective of the Warsaw Conference in adopting article 17 was to identify a zone within which the carrier could fairly be made to shoulder the principal responsibility of protecting against the risk of injury to passengers, e.g., a zone within which a rebuttable presumption of liability would not be unreasonable. It is consistent with that objective to consider the factors of activity, control, location, and timing in giving content to the broad language of article 17.

To petitioner's contention that the decision below was "in direct conflict" with Mache v. Air France, Rev. Fr. Droit Aerien 311 (Cour de Cassation 1970), the Solicitor General's brief replied:

although international uniformity of construction is to be desired, especially since such uniformity was the purpose of the Convention, for the reasons stated above,. . . the Court of Appeals did not err in refusing to adopt the French court's restrictive reading of article 17. U.S. courts need not defer to the decisions of foreign courts when to do so would achieve uniformity only at the cost of misconstruction.

In Evangelinos v. Trans World Airlines, Inc., 44 U.S. Law Week 2533 (1976), the Third Circuit Court of Appeals on May 4, 1976, reversed the District Court holding at 396 F. Supp. 95 (1975) where a result contrary to Day v. Trans World Airlines, Inc., supra, had been reached. See the 1975 Digest, pp. 457-458. The Court of Appeals acknowledged that its task had been significantly facilitated by the Second Circuit's decision in Day. It agreed with the result in Day that under article 17 of the Warsaw Convention the carrier was absolutely liable for injuries sustained by air passengers who suffered from a terrorist attack while standing in line at a departure gate in the terminal building waiting to undergo search.

A petition for rehearing en banc was granted June 3, 1976.

In Hernandez v. Air France, 545 F. 2d 279 (1976), the First Circuit Court of Appeals held on November 19, 1976, that injuries suffered by air passengers during a terrorist attack in the baggage retrieval area of an air terminal building while passengers were waiting for their luggage were not incurred while "disembarking" within the meaning of article 17 of the Warsaw Convention. The case arose out of an act of terrorism at Lod International Airport near Tel Aviv, Israel. The plaintiff-appellants sought damages from the defendant carrier for death and personal injury under the Warsaw Convention, as modified by the Montreal Agreement.

The District Court, citing the First Circuit's opinion in MacDonald v. Air Canada (1971) as a precedent, held that the attack did not occur during disembarkation. In MacDonald, the Court held article 17 not applicable to injuries sustained by an arriving passenger who fell in the baggage pick-up area of an airport. The Court of Appeals was asked to reexamine MacDonald in the light of recent decisions (Day and Evangelinos, supra). It ruled that MacDonald did not foreclose use of the Day-Evangelinos tripartite test, and observed:

... we believe that the nature of a plaintiff's activity when injured, its location, and the extent to which the airline was exercising control over plaintiff at the time of injury are certainly