NCJ Number
42649
Journal
University of Pennsylvania Law Review Volume: 125 Issue: 5 Dated: (MAY 1977) Pages: 1134-1165
Date Published
1977
Length
32 pages
Annotation
EXAMINATION OF ALTERNATIVE APPROACHES TO THESE TWO GOALS, FOCUSING SPECIAL ATTENTION ON DECISIONS HOLDING THE AIRLINE LIABLE UNDER THE WARSAW CONVENTION FOR INJURIES TO PASSENGERS SUSTAINED IN THE 1973 HELLIKON ATTACK.
Abstract
IN DAY V. TRANS WORLD AIRLINES, INC. (1976), AND EVANGELINOS V. TRANSWORLD AIRLINES, INC. (1977), THE SECOND AND THIRD CIRCUITS RULED THAT PASSENGERS COULD RECOVER FOR INJURIES SUSTAINED IN THE TERRORIST ATTACK ON ATHENS' HELLIKON AIRPORT. RECOVERY IN BOTH CASES WAS BASED ON PROVISIONS OF THE WARSAW CONVENTION AND THE MONTREAL AGREEMENT THAT CREATE AN IRREBUTABLE PRESUMPTION OF AIR CARRIER LIABILITY FOR INJURIES SUSTAINED WHILE EMBARKING. THESE REBUTTS DO PARTIALLY MEET THE OBJECTIVE OF COMPENSATING INJURED PASSENGERS BUT GENERALLY CANNOT WITHSTAND CLOSE ANALYSIS EITHER AS APPLICATIONS OF THE WARSAW CONVENTION AND PRIOR CASE LAW OR AS MATTERS OF PUBLIC POLICY. THE POSSIBILITY OF INTERNATIONAL CRIMINAL SANCTIONS AGAINST TERRORISTS AND NEGLIGENCE ACTIONS AGAINST AIRLINES ARE ALSO LACKING AS COMPREHENSIVE SOLUTIONS. THE BEST ALTERNATIVE CURRENTLY AVAILABLE IS INTERNATIONAL LAW CLAIMS AGAINST THE HOST GOVERNMENTS THAT OPERATE THE AIRPORTS. WEAKNESSES IN THIS APPROACH ARE PROBLEMS OF SOVEREIGN IMMUNITY AND THE FAILURE OF SOME NATIONS TO RECOGNIZE THE APPLICABLE INTERNATIONAL LAW. THE FINAL CONCLUSION IS THAT LEGAL OR EXTRA-LEGAL REFORMS ARE NEEDED TO MEET THE PROBLEMS OF AIRPORT TERRORIST ATTACKS ADEQUATELY. FOR EXAMPLE, THE COURTS COULD ABANDON THE DAY AND EVANGELINOS RATIONALE AND HOLD THAT THE WARSAW CONVENTION PROVISIONS CREATE LIABILITY ONLY WHEN PASSENGERS ARE UNDER THE AIRLINE'S EXCLUSIVE CONTROL AND EXPOSED TO A RISK CLEARLY ASSOCIATED WITH AIR TRAVEL. TO COMPENSATE VICTIMS OUTSIDE THE REACH OF THESE PROVISIONS, STATES MIGHT AGREE TO WAIVE SOVEREIGN IMMUNITY AND APPLY APPLICABLE TORT LAW. (AUTHOR ABSTRACT)...ELW