relevant considerations in determining the applicability of article 17. On the facts of this case, however, the application of these criteria require the conclusion that plaintiffs did not have a right to recover under article 17.

Considering first the passengers' activity, we note that at the time of the attack the passengers had already emerged from the aircraft, descended the stairs from the plane to the ground, traveled via bus or foot from the plane to the terminal, and presented their passports to the Israeli authorities. On these facts we do not believe it can be said that the passengers were still engaged in any activity relating to effecting their separation from the aircraft. All that remained to be done before the passengers left the airport was to pick up their baggage. We observe that passengers, who either carry no luggage or carry their luggage on the plane, will have no occasion to retrieve their baggage. It hardly seems, therefore, that such activity can constitute a necessary step in becoming separated from a plane. The passengers' location also militates against article 17 coverage in this case since the attack occurred inside the terminal building located approximately onethird to one-half mile from the point where the aircraft was parked. We also believe that the control factor weighs against holding the carrier liable. In sharp contrast to the factual situation in Day and Evangelinos, the passengers here were not segregated into a group at the direction of airline employees. There is no indication that airline personnel were dictating to the passengers how they were to go about retrieving their baggage or leaving the terminal. Rather, the passengers appear to have been "free agents roaming at will through the terminal." Day, supra, 528 F.2d at 33. Thus we conclude that this tragedy did not occur during disembarkation.

*

The Court also examined the negotiating history of article 17, including the negotiators' rejection of the draft prepared by a committee of experts, Comité Internationale Technique d'Experts Juridique Aeriens (CITEJA), which would have provided carrier liability from the moment passengers enter an airport of departure up to the time they leave the airport of destination. The Court found the rejection of that draft persuasive evidence that the negotiators "understood embarkation and disembarkation as essentially the physical activity of entering or exiting from an aircraft, rather than as a broader notion of initiating or ending a trip."

The Court did not accept the argument that a terrorist attack is appropriately regarded as a characteristic risk of air travel. It added:

Unlike the risk of hijacking,. . . where the aircraft and the fact of air travel are prerequisites to the crime, we think the risk of a random attack such as that which gave rise to this litigation is not a risk characteristic of travel by aircraft, but rather is a risk of living in a world such as ours. .

*

Liability of Employees of Carrier

In Reed v. Wiser, No. 75 Civ. 4015 (slip opinion), the U.S. District Court for the Southern District of New York ruled, for pretrial purposes on April 19, 1976, that the limitation of liability provisions of the Warsaw Convention do not apply to employees or agents of the carrier. Plaintiffs, who were heirs and next-of-kin of passengers who died in a Trans World Airlines crash near Greece in 1974, brought action against the TWA president and a vice president in charge of security, alleging that the crash was due to a bomb explosion aboard the aircraft, resulting from defendants' negligent failure to maintain an adequate security system.

The Court granted a motion to strike the defendants' affirmative defense that damages were limited to $75,000 for each decedent by the terms of the Warsaw Convention, as supplemented by the 1966 Montreal Agreement (Dept. of State Bulletin, Vol. LIV, No. 1407, June 13, 1966, pp. 955-956). While acknowledging that the question was not susceptible of a clear and entirely confident answer, the Court gave weight to the fact that the Warsaw Convention contains no definition of "carrier" but includes separate, distinguishing references to carriers and their agents (e.g. arts. 20(1) and 25). It also noted that there is a "powerful national policy favoring compensatory damages from tortfeasors who cause personal injury," as well as an aversion of U.S. law toward stipulations by common carriers "without congressional authority. . .against their own negligence or that of their agents or servants."

The Court found especially persuasive the failure of the United States to adhere to the Hague Protocol of 1955, containing a new article 25A which, said the Court, "expressly resolves the issue before this Court by extending the Warsaw limits of liability to the carrier's servants and agents acting within the scope of their employment." The Court said it considered this a datum "relevant in ascertaining the proper construction of the treaty's provisions," citing Day v. Trans World Airlines, Inc., 528 F.2d 31 (1975). See ante, p. 402.

Jurisdiction

In Butz v. British Airways, 421 F. Supp. 127 (1976), a passenger who had bought a 45-day excursion ticket-London to New York to London-brought action alleging injuries, including hearing loss and nerve damage, suffered in the descent at New York. On the airline's motion to dismiss the complaint, the U.S. District Court for the Eastern District of Pennsylvania held on October 20, 1976, that the only place of destination was London. It therefore ruled that the District Court was precluded from exercising jurisdiction under

article 28 of the Warsaw Convention (TS 876; 49 Stat. 3000), since the principal place of business of the airline and the place of business through which the contract had been made was also in London. The opinion stated:

.. Whether the return portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the passenger back to the place of origin within the prescribed time and the passenger for her part agreed to pay the fare and, in fact, did pay the fare.

It is my conclusion that there is only one place of destination for Warsaw Convention purposes which in this case was London. I cannot accept plaintiff's contention that each place where a particular flight terminated is a "place of destination" since the application of the convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket.

Protocols of Amendment

On December 23, 1976, the Department of State forwarded to the President two protocols of amendment of the Warsaw Convention with the recommendation that they be transmitted to the Senate for advice and consent to ratification. The two related protocols, done at Montreal on September 25, 1975, are:

a. Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as Amended by the Protocols done at The Hague on September 28, 1955, and at Guatemala City, March 8, 1971 (hereinafter, Montreal Protocol No.3); and

b. Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929 as Amended by the Protocol done at The Hague on September 8, 1955 (hereinafter, Montreal Protocol No. 4).

The following are excerpts from the Department of State's report to the President:

Since the early 1950's, international negotiations have been held for the purpose of adopting amendments to the Warsaw Convention of 1929 (adhered to by the United States in 1934). The Warsaw Convention provides rules governing generally the liability of air carriers with respect to passengers, baggage, and cargo moving in

international air transportation. The most significant features of this convention are its proof-of-fault requirements and limitations of liability, originally $8,300 in passenger cases (now equal to approximately $10,000 with devaluation of the dollar), and $7.50 (now equal to approximately $9.00) per pound in baggage or cargo cases. In addition, the convention provides detailed rules on passenger ticketing and, with respect to cargo, on the issuance of an air waybill and on various rights and responsibilities of the carrier, consignor, and consignee thereunder.

In the early 1950's, dissatisfaction with the Warsaw Convention, primarily because of the low level of the passenger liability limit, led to negotiations for amendment which culminated in the conclusion of the Hague Protocol of 1955. This protocol doubled the liability limits in passenger cases to $16,600 (now $20,000) and made certain technical provisions. However, there was continued dissatisfaction with the limits in the United States and agreement could not be reached on a domestic plan to increase recoveries under the Protocols; consequently the United States never ratified it.

The United States subsequently made further efforts to push the liability limits for passenger cases under the Warsaw Convention to $100,000 per passenger. This was strongly resisted by other countries, and consequently the United States filed a notice of denunciation of the convention. Pursuant to the terms of the convention, denunciation would have taken effect 6 months later. At the time of filing of the notice the United States announced that it would withdraw the notice: (1) If an interim carrier agreement were entered into providing for a passenger liability limit of $75,000; and (2) if there were a reasonable prospect of international agreement to amend the convention to provide for a limit in the area of $100,000. Ultimately, a carrier agreement was reached (the "Montreal Agreement"-CAB Agreement 18900, approved by Order E-23680, May 13, 1966), and the United States withdrew its notice of denunciation. The Montreal Agreement, presently in effect for international air transportation to and from the United States, contained two major elements insisted upon by the United States: (1) Liability of air carriers to $75,000 per passenger in cases of passenger injury or death; and (2) liability without regard to fault on the part of the carrier (no-fault liability). Subsequent negotiations on amendment of the convention resulted in adoption of the Guatemala City Protocol. It was opened for signature on March 8, 1971, and signed by the United States at that time. This protocol was directed to cases involving passengers and baggage, but not cargo. It increases the passenger liability limit to $100,000 (now approximately $115,000 with the devaluation of the dollar), and provides for a baggage liability limit of $1,000 per passenger (now approximately ($1,150). Carriers are subject to no-fault liability, an element carried over from the Montreal Agreement. In addition, the Guatemala City Protocol contains a provision known as the "settlement inducement clause," which permits a court to impose attorneys' fees if the carrier has not within six months of a claim involving passenger injury or death made an offer to settle at an amount at least equal to the ultimate recovery. Finally, the Guatemala Protocol recognizes in

specific treaty language that a State may adopt a domestic system to supplement the passenger liability limit. This latter provision was insisted upon by the United States, since it was not contemplated that the protocol would be submitted for ratification until such a domestic plan to supplement the passenger liability limit had been developed.

A domestic plan providing for a total passenger liability limit of $315,000 ($200,000 in addition to the carrier's liability of $115,000 under the protocol) has now been developed among major foreign and national air carriers and The Prudential Insurance Company of America, under guidelines established by agencies of the United States Government having responsibility for international aviation. The plan is currently pending before the Civil Aeronautics Board for approval as an intercarrier agreement, pursuant to § 412 of the Federal Aviation Act (Docket 28713). The plan would only have effect if the air carrier agreement with The Prudential is approved by the CAB and if the United States ratifies Montreal Protocol No. 3.

The United States is a party only to the Warsaw Convention of 1929; it is party to none of the subsequent protocols which revised the convention. However, by ratifying Protocols No. 3 and No. 4, the United States will adopt all of the newest versions of the rules: the passenger and baggage rules adopted at Guatemala City in 1971 with the SDR clause developed at Montreal in 1975 (Montreal Protocol No. 3) and cargo provisions adopted at Montreal in 1975 (Montreal Protocol No. 4).

Furthermore, final clauses of Protocols No. 3 and No. 4 permit a State ratifying them to limit its treaty relationships only to the newest version of the rules (in effect, repealing all older provisions), if it wishes, by making appropriate declarations, and, if it is presently a party to the Warsaw Convention or any protocols, by depositing a notice of denunciation of the earlier instruments to which it is party. Thus, by ratifying Protocols No. 3 and No. 4 and making the appropriate declarations, and by depositing a notice of denunciation of the 1929 Warsaw Convention to which it is party, the United States can end the old provisions and establish treaty relationships to govern international air transportation of passengers, baggage and cargo which are limited to the newest versions.

The United States would make the appropriate declarations (under Article XI(c) of Protocol No. 3 and under Article XXI(b) of Protocol No. 4), and deposit a notice of denunciation of the Warsaw Convention of 1929, at the same time as it deposits the United States instruments of ratification of Protocols No. 3 and No. 4. . . .

The United States has been one of the leaders in the efforts which have resulted in Montreal Protocols No. 3 and No. 4. For nearly two decades the United States has been in the forefront in urging amendments to the Warsaw Convention to provide for increased