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October 15, 1992



The opinion of the court was delivered by: LOUIS F. OBERDORFER

Plaintiff, Helen Kabbani, seeks damages from defendant for negligence and willful misconduct resulting in the theft of her purse at an airline security checkpoint at Dulles International Airport. Defendant, International Total Services, Inc. (ITS), provides baggage search and passenger inspection services by contract to individual airlines at Dulles. This matter comes before the court on defendant's motion to dismiss or in the alternative to strike all claims inconsistent with the Warsaw Convention. *fn1" Pursuant to the parties' agreement at a hearing on July 22, 1992, this motion, and plaintiff's opposition, shall be treated as defendant's partial motion for summary judgment.

 The question before the court at present is whether an independent contractor, when providing legally required security services to passengers boarding an international flight, is subject to the liability limitations of the Warsaw Convention for baggage thefts. Because plaintiff's bag was in defendant's charge at the time of the alleged theft, and because defendant was acting as the carrier's agent in providing security services the airline otherwise legally would have been required to provide, the Warsaw Convention applies to the circumstances challenged here and provides the exclusive remedy in this case. Accordingly, defendant's motion for partial summary judgment is granted.


 By law, all international airlines are required to provide security checks of embarking passengers and their baggage. 49 U.S.C. § 1356. *fn2" Defendant ITS provides these services at Dulles International Airport as an independent contractor under agreements with the individual airlines. Under the ITS contract with Air France, the airline in question here, each party indemnifies the other for all liability for losses resulting from that party's own negligence during the provision of contracted services. Def. Ex. 3, Agreement for Baggage Search and Passenger Inspection Services at Washington Dulles International Airport, § 6 ("the contract"). ITS maintains insurance to cover this liability.

 Plaintiff Kabbani occasionally travels to Syria for cleaning and repair of her family jewelry. She alleges that on October 9, 1989, she went to Dulles Airport to embark on one such journey, traveling to Paris via Air France. In her travel bag, she carried her purse, which contained jewels with an alleged value of several hundred thousand dollars. Plaintiff alleges that while she was passing through the metal detector at the ITS security checkpoint, the ITS agent obstructed Kabbani, resulting in the theft of her purse from the x-ray machine by another ITS agent. The purse and jewels were never recovered, though plaintiff's passport and other articles later were mailed anonymously to the State Department.

 Plaintiff sues ITS for reckless and willful misconduct in employing and supervising its employees and for breach of ITS's security contract with Air France. She seeks $ 1.5 million in compensatory and $ 1 million in punitive damages. The Warsaw Convention was not mentioned in plaintiff's complaint or in defendant's answer, and discovery proceeded under the aforementioned claims.

 Less than four months after plaintiff's Complaint was filed and prior to the end of discovery, defendant notified plaintiff of its intention to introduce the Warsaw Convention as a defense. Defendant now seeks to dismiss the Complaint for failure to state a cause of action, to strike all claims inconsistent with the Convention, or in the alternative, to amend its answer to assert the Warsaw Convention's damage limitations as plaintiff's exclusive remedy.


 The Warsaw Convention was adopted following two international negotiating conferences in Paris in 1925 and in Warsaw in 1929. It is undisputed that the fundamental purpose of the Convention was to create uniform liability rules around the world governing international travel and to limit the liability of air carriers. E.g. Reed v. Wiser, 555 F.2d 1079, 1089-90 (2d Cir. 1977). By superseding the myriad emerging domestic laws and setting limits on air carrier liability, the contracting nations sought to establish a "stable, predictable, and internationally uniform limit that would encourage the growth of a fledgling industry." Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 256, 80 L. Ed. 2d 273 , 104 S. Ct. 1776 (1984). Thus, the Convention reflects a calculated compromise, imposing strict liability on air carriers for losses and injuries occurring in international travel, while limiting the amount the injured party may recover. Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir. 1977).

 Article 24 of the Convention provides that suits for damage to baggage covered by Articles 18 and 19, "can only be brought subject to the conditions and limits set out in this convention." Art. 24(1). Courts have disagreed regarding whether the Warsaw Convention therefore creates "the universal source of a right of action." Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978). Compare Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1482 n.33 (11th Cir. 1989); Tokio Marine and Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936 (2d Cir. 1980). Some courts, for example, have held that state law claims may arise under the Convention. See Alvarez v. Aerovias Nacionales de Colombia, S.A., 756 F. Supp. 550 (S.D.Fla. 1991). Nevertheless, it universally is agreed that the Convention creates the exclusive remedy for injuries falling within its scope, unless the injured party can demonstrate willful misconduct on the part of the carrier. Alvarez v. Aerovias Nacionales, 756 F. Supp. at 555 ; In re Korean Air Lines Disaster, 664 F. Supp. 1463 (D.D.C. 1985). Where willful misconduct is established, the injured party is entitled to compensatory damages at fair market value. Punitive damages, however, are not recoverable in actions governed by the Warsaw Convention, In re Air Disaster at Lockerbie, 928 F.2d 1267 (2d Cir. 1991); In re Air Crash Disaster at Gander, 684 F. Supp. 927 (W.D.Ky. 1987), even where plaintiffs are able to demonstrate willful misconduct. Harpalani v. Air-India, Inc., 634 F. Supp. 797 (N.D.Ill. 1986).

 Two questions must be examined to determine the applicability of the Warsaw Convention to this case. First, would the loss at issue fall within the Convention's liability limitations if the security check had been conducted directly by the carrier? And second, does defendant's relationship to Air France allow defendant to invoke the Convention in its own defense? Courts in other jurisdictions have examined aspects of these questions. See Reed v. Wiser, 555 F.2d 1079; Baker v. Lansdell Protective Agency, Inc., 590 F. Supp. 165 (S.D.N.Y. 1984). Neither question previously has been addressed in this circuit, however, and in this jurisdiction the questions are ones of first impression. Each will be addressed in turn.


 Article 22 of the Warsaw Convention establishes liability limitations for three categories of injuries and losses. Sections one and two of the Article address air carrier liability to passengers, Art. 22(1), and liability for "checked baggage." Art. 22(2). Article 22(3) establishes liability for carry-on baggage, or "objects of which the passenger takes charge himself," and limits such liability to 5,000 French francs per passenger.

 Articles 22(2) and 22(3) regarding checked and carry-on baggage are further elaborated upon in Article 4, which requires that "for the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check." Art. 4(1) (Emphasis added). Article 4(4) further provides that "if the carrier accepts baggage without a baggage check having been delivered" the liability limitations of the convention regarding checked baggage do not apply, and the carrier therefore is fully liable for any injury or loss.

 In order to determine whether the recovery limitation in Article 22(3) is applicable to the facts at issue, the scope of the carrier's liability for carry-on baggage also must be determined. Here, the treaty on its face is less helpful. Article 22 creates three different categories of liability limits -- for passengers, checked baggage, and carry-ons. The treaty, however, contains only two provisions addressing the circumstances under which carrier liability for these categories is incurred. Article 17 limits the scope of air carrier liability for injuries to passengers to events occurring in flight or during "any of the operations of embarking and disembarking." Art. 17. Courts have construed "embarking and disembarking," to turn either on the passenger's physical location, see MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971); In re Tel Aviv, 405 F. Supp. 154 (D.C. Puerto Rico 1975), or more broadly on "whether the passenger's actions were a part of the operation or process of embarkation." Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 (2d Cir. 1975). Courts explicitly acknowledge that this clause does not impose liability on international carriers for all injuries to passengers occurring within an airport. *fn3"

 Article 18(1) of the Convention, on the other hand, provides that carriers are liable for "checked baggage or any goods" "if the occurrence which caused the damage . . . took place during the transportation by air." Transportation by air is defined as the period during which the baggage is "in the charge of the carrier, whether in an airport or on board an aircraft." Art. 18(2). The treaty thus creates a different standard of liability for checked baggage, for which the carrier is liable at any time while the bag is in the carrier's charge, Art. 18, and for passengers, to ...

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