USCA1 Opinion

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

whom John J. Bonistalli

___________________

was on

brief, for appellant.

Patricia A. Wilson, with
____________________
brief, for appellee.

_________________________

May 31, 1995

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Following

an

accident

that

occurred in

the course

appellant Eileen

M. McCarthy filed

defendant-appellee

Concluding that

district court

Airlines, Inc.,
_______________

appeals.

I.
I.

of international air

Northwest

the

a suit

862 F.

for damages

Airlines,

Warsaw Convention

grounded the

travel, plaintiff-

suit.

Supp. 17

See
___

(D.

Inc.

stood

(Northwest).

in the

McCarthy v.
________

Mass. 1994).

against

way,

the

Northwest
_________

Plaintiff

We affirm.

BACKGROUND
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

and stayed for

for them to

four days.

fly to

the Orient.

At that point

Osaka and

repaired

to the

airport and,

boarding

passes,

they joined

then on

They flew to Tokyo

their itinerary called

to China.

since they

a queue

The

had not

that

sisters

yet obtained

had formed

at the

Northwest ticket counter.

When

uncertainty

the sisters

about

whether

reached

time

plaintiff claims that they told

they were perfectly willing

avoid rushing.

their

the

had

desk,

grown

too

they

expressed

short.

The

the Northwest ticket agent

to take a later

The agent brushed

flight in order

aside their concerns,

luggage, issued boarding passes,

that

and led them

to

tagged

"at a fast

trot"

in the

general

direction of

following the agent (who

tickets,

and boarding

customs area.

Still

retained possession of their passports,

passes),

accessible to the general

building to

the

the sisters

took an

public from one level of

lower level.

The escalator

escalator

the terminal

malfunctioned

and

McCarthy fell.

Although

the

plaintiff

sustained

an

injury,

she

proceeded

through customs, entered a

approximate

point

airplane that

she

had

departure,

and

took her to Osaka.

planned.

consulted

knee.

of

Upon her

a physician

who

bus that drove

thereafter

her to the

boarded

She continued on

return to

the United

determined that

she had

the

to China as

States, she

broken her

The doctor's diagnosis led to both a lengthy convalescence

and a suit for damages.1

II.
II.

THE SUMMARY JUDGMENT STANDARD

THE SUMMARY JUDGMENT STANDARD

Summary

litigation.

pleadings

Its

judgment

"role

and assay

is to

special

pierce

the parties'

whether trial is actually

of Med.,
_______

has

the boilerplate

proof in

required."

niche

order to

in

civil

of

the

determine

Wynne v. Tufts Univ. Sch.

_____
_________________

976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113 S.
_____ ______

Ct. 1845 (1993).

full-blown

The device allows courts and litigants to avoid

trials

in

unwinnable

cases,

thus

parties' time and money, and permitting courts

conserving

the

to husband scarce

____________________

1McCarthy originally sued Northwest

strict liability theories.
district

court,

Consequently,

her

Following an

she

abandoned

the

appeal

concerns

only

claim.

on both negligence

and

adverse ruling in

the

negligence
her

claim.

strict liability

judicial resources.

A court

may grant summary judgment

depositions, answers to interrogatories, and

together

with

genuine issue as

is

the affidavits,

if any,

We have discussed this rule

e.g., Coyne
____ _____

admissions on file,

show

that there

to any material fact and that

entitled to a judgment as a matter

56(c).

"if the pleadings,

v. Taber Partners I,
_________________

1995) [No. 94-2231,

of law."

is no

the moving party

Fed. R. Civ. P.

in a cascade of cases, see,

___

___ F.3d

slip op. at 4-5];

___, ___

(1st Cir.

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.),

________________________________

1992);

(1st

Rivera-Muriente v.
_______________

960 F.2d 200,

Agosto-Alicea, 959
_____________

204 (1st

F.2d 349,

Cir.

351-52

Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st

___________
_____

Cir. 1990); Medina-Munoz

____________

v. R.J. Reynolds Tobacco Co.,

_________________________

5, 7-8 (1st Cir. 1990); Garside

_______

48-49 (1st

Cir. 1990), and it

rehearse all the particulars of

896 F.2d

v. Osco Drug, Inc., 895 F.2d 46,

_______________

would serve no useful

those discussions.

purpose to

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

exists.

machinery only

by

showing that

See National Amusements,

___ ___________________

trialworthy issue

43 F.3d at 735.

As

to issues

on which the summary judgment target bears the ultimate burden of

proof, she cannot rely

must affirmatively

on an absence of competent

point to specific facts

evidence, but

that demonstrate the

existence

Not

of an authentic dispute.

every

factual

dispute

judgment; the contested fact

over it must be "genuine."

a contested fact

suit under

thwart

summary

must be "material" and the

dispute

to

In this regard, "material" means that

the governing law if the

outcome of the

dispute over it is resolved

See One Parcel, 960 F.2d at 204.

___ __________

By

token, "genuine" means that "the evidence about the fact is

such that a

reasonable jury could resolve the

the nonmoving party . . . ."

When all is said

the

sufficient

has the potential to change the

favorably to the nonmovant.

like

is

See Garside, 895 F.2d at 48.

___ _______

entire

record in

point in favor of

Id.
___

and done, the trial court

the light

most

hospitable to

must "view

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

unsupported

genuine

allegations, improbable

speculation,"

issue of

Medina-Munoz, 896
____________

material

fact emerges,

inferences,

F.2d at 8.

then

[or]

If no

the motion

for

requires

the

summary judgment may be granted.

Because

trial

than to

court to

the summary

make an

judgment

standard

essentially legal

engage in differential factfinding,

an order granting such a motion is plenary.

at 347; Garside, 895 F.2d at 48.

_______

determination rather

appellate review of

See Pagano, 983 F.2d

___ ______

III.
III.

DISCUSSION
DISCUSSION

We

bifurcate

the body

of

our

opinion.

First,

explicate the Warsaw Convention, the etiology of Article

the accepted analytic

shine the light of

approach to

Article 17 cases.

our gleaned understanding on the

we

17, and

Next,

we

case before

us.

A.
A.

Generally

The Legal Landscape.

The Legal Landscape.
___________________

speaking,

the

Warsaw Convention,

formally

known

as the

Relating to

Convention for

arose

industry

accidents

of Certain

International Transportation by Air,

49 Stat. 3000, T.S. No.

1502,2

the Unification

out of

with a

uniform set

occurring

Convention, air

need

of legal

in international

carriers are absolutely

monetary ceiling, for any

bodily injury

or death as

board the aircraft

to provide

rules that

air

long as the

would govern

travel.

accident in which a

app.

a fledgling

liable, up to

Under

the

a preset

passenger suffers

accident "took

or in the course of any

embarking or disembarking."

"Treaty

Oct. 12, 1929,

876 (1934), note foll. 49 U.S.C.

a perceived

Rules

place on

of the operations of

Id., art. 17, 49 Stat. at 3018.

___

interpretation is a purely legal exercise," In

__

re Extradition of Howard, 996

_________________________

F.2d 1320, 1329

(1st Cir. 1993),

____________________

2The

United

States

initially

Convention on October 29, 1934.

indicated,
opinion

however, all

are

to

the

to

document

as

to the

Warsaw

modified

Convention in
by

the

this

Montreal

the Agreement Relating to Liability

Limitations of the Warsaw Convention and the Hague

Agreement

the

Except as otherwise specifically

references

Agreement, formally known as

adhered

18900, note foll. 49

U.S.C. app.

1502 (approved by

CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302).

Protocol, CAB

but the

terms "embarking"

and

"disembarking" as

treaty are less than mathematically precise.

history can

inform the meaning

so, too, can

the history of

Cook v. United States, 288

____
_____________

used in

this

Just as legislative

of an inexact

a treaty inform

statute, however,

its meaning.

U.S. 102, 112 (1933).

back in time to gain a better comprehension of

Thus,

See
___

we look

the language that

the drafters employed.

The

Warsaw Convention

deliberation.

Conferees

who met

committee

experts,

the

of

d'Experts Juridique

accord.

CITEJA's

A riens

was

the

in Paris in

Comit

recommendations were

ponderous

1925 appointed

Internationale

(CITEJA), to

conference, held in Warsaw in 1929.

product of

prepare

Technique

considered at

suggested

a second

CITEJA recommended extending

accident coverage to passengers "from

airport

of

departure until

airport of arrival."

Private

the time [they] enter

the time

when

they exit

October

4-12, 1929,

Warsaw 171

Horner & D. Legrez trans. 1975) (Warsaw Minutes).

the proposed language inspired heated debate.

F.2d 31, 35

see also Day

___ ____ ___

(2d Cir.

from the

Minutes, Second International Conference on

Aeronautical Law,

Minutes at 49;

the

(R.

The breadth of

See, e.g.,
___ ____

Warsaw

v. Trans World Airlines, Inc., 528

___________________________

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

contract of carriage."

Hernandez
_________

Warsaw Minutes at 73; see

___

v. Air France,
___________

545 F.2d

(discussing Ripert proposal), cert.

_____

The

and

279,

drafting

committee

283 (1st

Cir.

1976)

denied, 430 U.S. 950 (1977).

______

delegates embraced Ripert's idea,

the

also Martinez
____ ________

see Warsaw Minutes at 83,

___

couched

the

compromise

in

substantially the formnow embodied in Article 17. See id. at 166.

___ ___

The single substantive issue

is

whether plaintiff

meaning of Article 17.

was injured

Though

presented in this

while "embarking"

appeal

within the

the Supreme Court has not yet had

occasion to define the words "embarking" or "disembarking" in the

context

of Article 17, the

parsimoniously.

U.S.

530, 552

Court has generally

read Article 17

See, e.g., Eastern Airlines, Inc. v.

___ ____ ______________________

(1991) (holding

that Article

17 does

Floyd, 499
_____

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

for

strict liability,

and

understandable as Article 17 provides

there are

sound

policy reasons

to

confine

that liability

construed.

See
___

to

the

letter

Eastern Airlines, 499

________________

of the

text,

U.S. at 552.

narrowly

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

restrained in defining them.

490

U.S. 122, 128 (1989)

carrier of

will

prove

to

be

similarly

Cf. Chan v. Korean Air Lines, Ltd.,

___ ____
______________________

(holding that Article

the Warsaw Convention's Article

3(2) deprives a

3 damages limitation

only if the carrier fails to deliver a ticket altogether).

Given the

Supreme Court

has sent, most

"embarking" and

spatial

these

historical record

relationship with the

found a

The inquiry focuses on

of injury, (2)

extent

courts have interpreted

"disembarking" to

courts have

and the signals

connote a close

flight itself.

In

the terms

temporal and

the process,

three-pronged inquiry to

be useful.

(1) the passenger's activity at

his or her whereabouts when injured,

that the

the time

and (3) the

to which the carrier was exercising control at the moment

of injury.

875 F.2d 613,

See, e.g., Schroeder

___ ____ _________

617 (7th

v. Lufthansa German Airlines,

__________________________

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

relevant in determining

Martinez Hernandez,
__________________

factors

the applicability

545 F.2d at 282.

rather, as forming a

analysis, the

Evangelinos,
___________

factors are

550 F.2d

at

of Article

We do not

activity, location, and control

stool, but,

last

considerations are highly

17.

See
___

view the three

as separate legs of a

single, unitary base.

In the

inextricably intertwined.

155 (observing

that

control "is

integral factor in evaluating both location and activity").

Cf.
___

an

What is more, the language of Article 17

to

accidents that occur "in the course

of embarking"

which speaks

of any of the operations

strongly suggests that there must

be a tight tie

between an accident and the physical act of entering an aircraft.

See Martinez Hernandez, 545 F.2d at 283-84

___ ___________________

drafters

of

the

Warsaw

Convention

(concluding that the

understood

embarking

"as

essentially the physical activity

also
____

of entering" an airplane); see

___

Evangelinos, 550 F.2d at 155.

___________

location

as well as activity.

attach, the passenger

particular

must not

time, constitutes

process, but also must do it

location at

which he

designated aircraft.

or

This "tying" concept informs

Consequently, for

Article 17 to

only do something

that, at

a necessary

step in

the boarding

in a place not too remote

she is

slated actually

See Martinez Hernandez,

___ __________________

the

from the

to enter

545 F.2d at

the

283;

Day, 528 F.2d at 33.

___

B.
B.

In applying these

deem it

useful

to start

Analysis.
Analysis.
________

principles to the

by

case at hand,

considering specific

examples

we

of

accidents that have been

Article

17.

Perhaps

found to come within the

the

most venturesome

appellate decisions are Day and Evangelinos.

___
___________

tickets,

passed

encincture of

of

the

reported

When passengers had

surrendered

their

through

passport

entered the

area reserved exclusively for those

control,

about to depart

on international flights, and queued up at the departure gate

prerequisite to

were

engaged

process.

boarding

in performing

Thus, Article

Day, 528 F.2d at

___

virtually

all

33.

the

the

Second Circuit

ruled that

necessary step

in

17 applied to

activities

boarding, and were standing

required as

they

the boarding

an ensuing injury.

Similarly, when passengers

See
___

"had completed

prerequisite

in line at the departure

to

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

the terminal, located

the bus

left the common area of

that would transport

her to

the

vicinity of her assigned aircraft, reached an area restricted

travelers,

nor

isolated

passengers

flying

to

herself

other

from

the

destinations.

throng

In

of

to

other

addition,

the

activity in which the plaintiff was engaged at the time of injury

proceeding on

common area

to

an escalator

another

comprising a necessary

Evangelinos and Day,

___________
___

from one level

cannot

step in

in

any

of the

sense

terminal's

be

the boarding process.

the only way passengers could

seen

In

as

both

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

in Evangelinos and Day, happened at

___________
___

the departure

gate and

the accident

a considerable distance from

well before any

11

here, unlike

actual embarkation

was

possible.

the

In other words, plaintiff's fall was far removed from

act of

embarkation, both

importantly,

restricted

that

it took

place

to passengers.

the plaintiff has

deterrate

to cover

temporally and

in

part

of

spatially.

the

terminal

Most

not

We believe it is no mere happenstance

not cited

and we have

been unable to

a single instance in which Article 17

has been found

an accident that occurred

within the public

area of a

terminal facility.

A typical

Inc., 900
____

although

case is

F.2d 8 (2d Cir.

the plaintiff

Buonocore v. Trans World Airlines,

_________
______________________

1990), in which the

had checked

in at

court held that,

the ticket

counter,

Article 17 did not cover an ensuing injury sustained in a

area "nowhere near the gate."

Id. at 10.
___

El Al Israel Airlines, Ltd.,

____________________________

551 F. Supp.

the

their baggage

plaintiffs "had

checked

boarding passes, but had

an

accident

building.

occurred

Id. at 262-63.
___

that the plaintiffs

So, too, in Rolnick v.

_______

261 (E.D.N.Y. 1982),

and obtained

not yet gone to passport

on

an

escalator

within

On these facts, the

were not "embarking"

public

their

control" when

the

terminal

court determined

within the purview

of

Article 17.

The disembarkation cases are grouped along a comparable

axis.

See, e.g.,
___ ____

inapplicable where

in

common

Maugnie, 549 F.2d at 1262 (holding

_______

passenger had deplaned and

passenger

corridor

of

Orly

Article 17

accident occurred

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.
_____

F. Supp.

Trans World Airlines, Inc., 610

___________________________

844,

846-47 (D. Colo. 1985).

Although

location

of

the

plaintiff, relying

both

accident

nature

stand

primarily on

Hernandez (suggesting
_________

limited to

the

that "the

of the

as

activity

obstacles

in

a dictum contained

scope of article

those situations either

and

her

so," 545 F.2d at

17 should

where the carrier

nonetheless

over

and

283 n.4), argues that

available because

her once its agent

boarding pass.

This

Northwest had

path,

in Martinez
________

be

has taken

charge of the passengers, or possibly where it customarily

have done

the

would

Article 17 is

"absolute control"

had "confiscated" her passport, ticket,

attempt to fly

over hostile territory

ends in a crash landing.

In

the first

place, after

we discard

the rhetorical

flourishes and focus

F.2d at 8

on the facts, see, e.g.,

___ ____

Medina-Munoz, 896
____________

(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.

was

McCarthy produced no

obliged

to

prerequisite to

take the

embarking.

evidence tending to

escalator

on

which

show that she

she

Likewise, she produced

fell as

no evidence

suggesting that the ticket agent refused a timely request to slow

down or to return her travel documents.

desire to follow the

If the plaintiff did not

agent down the escalator "at

13

a fast trot,"

she had

the ability

to

proceed at

her own

pace,

to take

an

alternate route, or simply to await a later flight.

In

agent's

the second place, even were we to conclude that the

peremptory instructions, coupled

plaintiff's travel

this,

documents, constituted a

alone, would

surrounds Article 17.

not

be

enough

to

kind of

bridge

the

"control,"

moat

that

If it were, the Day/Evangelinos test would

_______________

be a hoax, for two of its three prongs

would

with the possession of

be rendered inoperative, and

activity and location

the third

control

would

lack the nexus with the others that informed the final version of

Article

17.

attenuated

augmented

control.

At

bottom,

connection

by nothing

with

plaintiff's

activity

entering

an aircraft,

more than

Thus, these factors

an indulgent

had

and

only

an

it

is

interpretation of

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

reads the dictum

we reject it.

But we think that the plaintiff

through rose-colored glasses.

Martinez Hernandez court held that

___________________

the facts

of that case,

After all,

Article 17 did

see 545 F.2d

___

at 282, and

the

not apply on
___

this holding

indicates that the court

of Article

never intended to throw open

17 as widely as McCarthy suggests.

court done so.3

the gates

Nor has any other

We will not be the first.

____________________

3To

be sure, a somewhat

where the court

under

the Warsaw

similar dictum is

found in Knoll,
_____

wrote of judicial reluctance to

extend coverage

Convention

"to injuries

14

IV.
IV.

CONCLUSION
CONCLUSION

incurred within

the

Having dismissed the notion that the Martinez Hernandez

__________________

dictum demands a repudiation

below, we taxi

record

in

of the result reached by

toward the hangar.

the

ambience

the court

Scrutinizing the evidence

most soothing

to

the

of

plaintiff, and

applying settled legal principles, a rational jury could not find

that,

the

at the time of the injury, McCarthy was "embarking" within

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."
___________________________________
(emphasis supplied).
court's

it.

not embarking
proceed to
Id. at
___

But in Knoll, as in Martinez Hernandez, the

_____
__________________

holding belies

derive from

847.

Knoll, 610 F. Supp. at 846

_____

To be

the implication

that McCarthy

specific, the court held

where, after airline agents

seeks to

that Knoll was

advised passengers to

immigration, she slipped as she approached that area.

In

so holding,

activities

yet

to

be

immigration

and

customs, were

the court stressed

performed,
not

e.g.,
____

that the

proceeding

conditions

many

through

imposed by

the

airline, but, rather, were conditions imposed by the host country

in which plaintiff was traveling.

15

See id.
___ ___