
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               ____________________             ___________________          brief, for appellant.               Patricia  A.  Wilson, with  whom John  J. Bonistalli  was on               ____________________             ___________________          brief, for appellee.                              _________________________                                     May 31, 1995                              _________________________                    SELYA,  Circuit  Judge.   Following  an  accident  that                    SELYA,  Circuit  Judge.                            ______________          occurred in  the course  of international air  travel, plaintiff-          appellant Eileen  M. McCarthy filed  a suit  for damages  against          defendant-appellee   Northwest    Airlines,   Inc.   (Northwest).          Concluding that  the  Warsaw Convention  stood  in the  way,  the          district court  grounded the  suit.   See  McCarthy v.  Northwest                                                ___  ________     _________          Airlines,  Inc.,  862 F.  Supp. 17  (D.  Mass. 1994).   Plaintiff          _______________          appeals.  We affirm.          I.  BACKGROUND          I.  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  the Orient.  They flew to Tokyo          and stayed for  four days.  At that point  their itinerary called          for them to  fly to  Osaka and  then on  to China.   The  sisters          repaired  to the  airport and,  since they  had not  yet obtained          boarding  passes,  they joined  a queue  that  had formed  at the          Northwest ticket counter.                    When  the sisters  reached  the  desk,  they  expressed          uncertainty  about  whether  time  had  grown  too  short.    The          plaintiff claims that they told  the Northwest ticket agent  that          they were perfectly willing  to take a later  flight in order  to          avoid rushing.   The agent brushed  aside their concerns,  tagged          their  luggage, issued boarding passes,  and led them  "at a fast                                          2          trot"  in the  general  direction of  the  customs area.    Still          following the agent (who  retained possession of their passports,          tickets,  and boarding  passes),  the sisters  took an  escalator          accessible to the general  public from one level of  the terminal          building to  a  lower level.    The escalator  malfunctioned  and          McCarthy fell.                    Although  the  plaintiff   sustained  an  injury,   she          proceeded  through customs, entered a  bus that drove  her to the          approximate  point  of  departure,  and  thereafter  boarded  the          airplane that  took her to Osaka.   She continued on  to China as          she  had  planned.   Upon her  return to  the United  States, she          consulted  a physician  who  determined that  she had  broken her          knee.  The doctor's diagnosis led to both a lengthy convalescence          and a suit for damages.1          II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD                    Summary  judgment   has  a   special  niche   in  civil          litigation.   Its  "role  is to  pierce  the boilerplate  of  the          pleadings  and assay  the parties'  proof in  order to  determine          whether trial is actually  required."  Wynne v. Tufts  Univ. Sch.                                                 _____    _________________          of Med.,  976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113 S.          _______                                      _____ ______          Ct. 1845 (1993).  The device allows courts and litigants to avoid          full-blown  trials  in  unwinnable  cases,  thus  conserving  the          parties' time and money, and permitting courts  to husband scarce                                        ____________________               1McCarthy originally sued Northwest  on both negligence  and          strict liability theories.   Following an  adverse ruling in  the          district   court,    she   abandoned   the    negligence   claim.          Consequently,  her  appeal  concerns  only  her  strict liability          claim.                                          3          judicial resources.                    A court  may grant summary judgment  "if the pleadings,          depositions, answers to interrogatories, and  admissions on file,          together  with  the affidavits,  if any,  show  that there  is no          genuine issue as  to any material fact and that  the moving party          is  entitled to a judgment as a matter  of law."  Fed. R. Civ. P.          56(c).   We have discussed this rule  in a cascade of cases, see,                                                                       ___          e.g., Coyne  v. Taber  Partners I,  ___ F.3d  ___, ___  (1st Cir.          ____  _____     _________________          1995) [No. 94-2231,  slip op. at 4-5];  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.),  960 F.2d 200,  204 (1st  Cir.          ________________________________          1992);  Rivera-Muriente v.  Agosto-Alicea, 959  F.2d 349,  351-52                  _______________     _____________          (1st  Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st                            ___________    _____          Cir. 1990); Medina-Munoz  v. R.J. Reynolds Tobacco Co.,  896 F.2d                      ____________     _________________________          5, 7-8 (1st Cir. 1990); Garside  v. Osco Drug, Inc., 895 F.2d 46,                                  _______     _______________          48-49 (1st  Cir. 1990), and it  would serve no useful  purpose to          rehearse all the particulars of  those discussions.  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  machinery only  by  showing that  a  trialworthy issue          exists.  See National Amusements,  43 F.3d at 735.  As  to issues                   ___ ___________________                                          4          on which the summary judgment target bears the ultimate burden of          proof, she cannot rely  on an absence of competent  evidence, but          must affirmatively  point to specific facts  that demonstrate the          existence  of an authentic dispute.  See Garside, 895 F.2d at 48.                                               ___ _______          Not  every  factual  dispute  is  sufficient  to  thwart  summary          judgment; the contested fact  must be "material" and the  dispute          over it must be "genuine."  In this regard, "material" means that          a contested fact  has the potential to change the  outcome of the          suit under  the governing law if the  dispute over it is resolved          favorably to the nonmovant.  See One Parcel, 960 F.2d at 204.  By                                       ___ __________          like  token, "genuine" means that "the evidence about the fact is          such that a  reasonable jury could resolve the  point in favor of          the nonmoving party . . . ."  Id.                                        ___                    When all is said  and done, the trial court  must "view          the  entire  record in  the light  most  hospitable to  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  allegations, improbable  inferences,  [or]          unsupported  speculation,"  Medina-Munoz, 896  F.2d at 8.   If no                                      ____________          genuine  issue of  material  fact emerges,  then  the motion  for          summary judgment may be granted.                    Because  the summary  judgment  standard  requires  the          trial  court to  make an  essentially legal  determination rather          than to  engage in differential factfinding,  appellate review of          an order granting such a motion is plenary.  See Pagano, 983 F.2d                                                       ___ ______          at 347; Garside, 895 F.2d at 48.                  _______                                          5          III.  DISCUSSION          III.  DISCUSSION                    We  bifurcate  the body  of  our  opinion.   First,  we          explicate the Warsaw Convention, the etiology of Article  17, and          the accepted analytic  approach to  Article 17 cases.   Next,  we          shine the light of  our gleaned understanding on the  case before          us.                               A.  The Legal Landscape.                               A.  The Legal Landscape.                                   ___________________                    Generally  speaking,  the  Warsaw Convention,  formally          known  as the  Convention for  the Unification  of Certain  Rules          Relating to  International Transportation by Air,  Oct. 12, 1929,          49 Stat. 3000, T.S. No.  876 (1934), note foll. 49 U.S.C.  app.            1502,2  arose  out of  a perceived  need  to provide  a fledgling          industry  with a  uniform set  of legal  rules that  would govern          accidents  occurring  in international  air  travel.   Under  the          Convention, air  carriers are absolutely  liable, up to  a preset          monetary ceiling, for any  accident in which a  passenger suffers          bodily injury  or death as  long as the  accident "took  place on          board the aircraft  or in the course of any  of the operations of          embarking or disembarking."  Id., art. 17, 49 Stat. at 3018.                                       ___                    "Treaty  interpretation is a purely legal exercise," In                                                                         __          re  Extradition of Howard, 996  F.2d 1320, 1329  (1st Cir. 1993),          _________________________                                        ____________________               2The  United   States  initially   adhered  to   the  Warsaw          Convention on October 29, 1934.  Except as otherwise specifically          indicated,  however, all  references  to the  Convention in  this          opinion  are  to  the  document   as  modified  by  the  Montreal          Agreement, formally known as  the Agreement Relating to Liability          Limitations of the Warsaw Convention and the Hague  Protocol, CAB          Agreement  18900, note foll. 49  U.S.C. app.    1502 (approved by          CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302).                                          6          but the  terms "embarking"  and  "disembarking" as  used in  this          treaty are less than mathematically precise.  Just as legislative          history can  inform the meaning  of an inexact  statute, however,          so, too, can  the history of  a treaty inform  its meaning.   See                                                                        ___          Cook v. United States, 288  U.S. 102, 112 (1933).  Thus,  we look          ____    _____________          back in time to gain a better comprehension of  the language that          the drafters employed.                    The  Warsaw Convention  was  the  product of  ponderous          deliberation.  Conferees  who met  in Paris in  1925 appointed  a          committee  of  experts,   the  Comit   Internationale   Technique          d'Experts Juridique  A riens  (CITEJA), to  prepare  a  suggested          accord.   CITEJA's  recommendations were  considered at  a second          conference, held in Warsaw in 1929.  CITEJA recommended extending          accident coverage to passengers "from  the time [they] enter  the          airport  of  departure until  the time  when  they exit  from the          airport of arrival."  Minutes, Second International Conference on          Private  Aeronautical Law,  October  4-12, 1929,  Warsaw 171  (R.          Horner & D. Legrez trans. 1975) (Warsaw Minutes).  The breadth of          the proposed language inspired heated debate.  See, e.g.,  Warsaw                                                         ___  ____          Minutes at 49;  see also Day  v. Trans World Airlines,  Inc., 528                          ___ ____ ___     ___________________________          F.2d 31, 35  (2d Cir.  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                                          7          contract of carriage."   Warsaw Minutes at 73; see  also Martinez                                                         ___  ____ ________          Hernandez  v. Air  France,  545 F.2d  279,  283 (1st  Cir.  1976)          _________     ___________          (discussing Ripert proposal), cert.  denied, 430 U.S. 950 (1977).                                        _____  ______          The  delegates embraced Ripert's idea,  see Warsaw Minutes at 83,                                                  ___          and   the   drafting   committee   couched   the   compromise  in          substantially the formnow embodied in Article 17. See id. at 166.                                                            ___ ___                    The single substantive issue  presented in this  appeal          is  whether plaintiff  was injured  while "embarking"  within the          meaning of Article 17.  Though  the Supreme Court has not yet had          occasion to define the words "embarking" or "disembarking" in the          context  of Article 17, the  Court has generally  read Article 17          parsimoniously.  See, e.g., Eastern Airlines, Inc. v.  Floyd, 499                           ___  ____  ______________________     _____          U.S.  530, 552  (1991) (holding  that Article  17 does  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  understandable as Article 17 provides          for  strict liability,  and  there are  sound  policy reasons  to          confine  that liability  to  the  letter  of the  text,  narrowly          construed.  See  Eastern Airlines, 499  U.S. at 552.   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  will  prove  to  be  similarly          restrained in defining them.  Cf. Chan v. Korean Air Lines, Ltd.,                                        ___ ____    ______________________          490  U.S. 122, 128 (1989)  (holding that Article  3(2) deprives a          carrier of  the Warsaw Convention's Article  3 damages limitation                                          8          only if the carrier fails to deliver a ticket altogether).                    Given the  historical record  and the signals  that the          Supreme Court  has sent, most  courts have interpreted  the terms          "embarking" and  "disembarking" to  connote a close  temporal and          spatial  relationship with the  flight itself.   In  the process,          these  courts have  found a  three-pronged inquiry to  be useful.          The inquiry focuses on  (1) the passenger's activity at  the time          of injury, (2)  his or her whereabouts when injured,  and (3) the          extent  to which the carrier was exercising control at the moment          of injury.   See, e.g., Schroeder  v. Lufthansa German  Airlines,                       ___  ____  _________     __________________________          875 F.2d 613,  617 (7th  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  considerations are highly          relevant in determining  the applicability  of Article  17.   See                                                                        ___          Martinez Hernandez,  545 F.2d at 282.   We do not  view the three          __________________          factors   activity, location, and control   as separate legs of a          stool, but,  rather, as forming a  single, unitary base.   In the          last  analysis, the  factors are  inextricably intertwined.   Cf.                                                                        ___          Evangelinos,  550 F.2d  at  155 (observing  that  control "is  an          ___________          integral factor in evaluating both location and activity").                    What is more, the language of Article 17   which speaks          to  accidents that occur "in the course  of any of the operations          of embarking"   strongly suggests that there must  be a tight tie          between an accident and the physical act of entering an aircraft.                                          9          See Martinez  Hernandez, 545 F.2d at 283-84  (concluding that the          ___ ___________________          drafters  of  the  Warsaw  Convention  understood  embarking  "as          essentially the physical activity  of entering" an airplane); see                                                                        ___          also  Evangelinos, 550 F.2d at 155.  This "tying" concept informs          ____  ___________          location  as well as activity.   Consequently, for  Article 17 to          attach, the passenger  must not  only do something  that, at  the          particular  time, constitutes  a necessary  step in  the boarding          process, but also must do it  in a place not too remote  from the          location at  which he  or  she is  slated actually  to enter  the          designated aircraft.   See Martinez Hernandez,  545 F.2d at  283;                                 ___ __________________          Day, 528 F.2d at 33.          ___                                    B.  Analysis.                                    B.  Analysis.                                        ________                    In applying these  principles to the  case at hand,  we          deem it  useful  to start  by  considering specific  examples  of          accidents that have been  found to come within the  encincture of          Article  17.    Perhaps  the  most venturesome  of  the  reported          appellate decisions are Day and Evangelinos.  When passengers had                                  ___     ___________          surrendered  their  tickets,  passed  through  passport  control,          entered the  area reserved exclusively for those  about to depart          on international flights, and queued up at the departure gate   a          prerequisite to  boarding   the  Second Circuit  ruled that  they          were  engaged  in performing  a  necessary step  in  the boarding          process.   Thus, Article  17 applied to  an ensuing injury.   See                                                                        ___          Day, 528 F.2d at  33.  Similarly, when passengers  "had completed          ___          virtually  all  the  activities  required as  a  prerequisite  to          boarding, and were standing  in line at the departure  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  left the common area of          the terminal, located  the bus  that would transport  her to  the          vicinity of her assigned aircraft, reached an area restricted  to          travelers,  nor  isolated  herself   from  the  throng  of  other          passengers  flying  to  other  destinations.   In  addition,  the          activity in which the plaintiff was engaged at the time of injury            proceeding on  an escalator  from one level  of the  terminal's          common area  to  another     cannot  in  any  sense  be  seen  as          comprising a necessary  step in  the boarding process.   In  both          Evangelinos and Day,  the only way passengers could  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   the accident  here, unlike          in Evangelinos and Day, happened at  a considerable distance from             ___________     ___          the departure  gate and  well before any  actual embarkation  was                                          11          possible.   In other words, plaintiff's fall was far removed from          the  act of  embarkation, both  temporally and  spatially.   Most          importantly,  it took  place  in  a  part  of  the  terminal  not          restricted  to passengers.  We believe it is no mere happenstance          that  the plaintiff has  not cited    and we have  been unable to          deterrate   a single instance in which Article 17  has been found          to cover  an accident that occurred  within the public  area of a          terminal facility.                    A typical  case is  Buonocore v. Trans  World Airlines,                                        _________    ______________________          Inc., 900  F.2d 8 (2d Cir.  1990), in which the  court held that,          ____          although  the plaintiff  had checked  in at  the ticket  counter,          Article 17 did not cover an ensuing injury sustained in a  public          area "nowhere near the gate."  Id. at 10.  So, too, in Rolnick v.                                         ___                     _______          El  Al Israel Airlines, Ltd.,  551 F. Supp.  261 (E.D.N.Y. 1982),          ____________________________          the  plaintiffs "had  checked  their baggage  and obtained  their          boarding passes, but had  not yet gone to passport  control" when          an  accident  occurred  on   an  escalator  within  the  terminal          building.  Id. at 262-63.   On these facts, the  court determined                     ___          that the plaintiffs  were not "embarking"  within the purview  of          Article 17.                    The disembarkation cases are grouped along a comparable          axis.  See, e.g.,  Maugnie, 549 F.2d at 1262 (holding  Article 17                 ___  ____   _______          inapplicable where  passenger had deplaned and  accident occurred          in  a  common  passenger  corridor  of  Orly  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.  Trans World  Airlines, Inc., 610  F. Supp.  844,                 _____     ___________________________          846-47 (D. Colo. 1985).                     Although  both  the  nature  of the  activity  and  the          location  of  the  accident  stand  as  obstacles  in  her  path,          plaintiff, relying  primarily on  a dictum contained  in Martinez                                                                   ________          Hernandez (suggesting  that "the  scope of article  17 should  be          _________          limited to  those situations either  where the carrier  has taken          charge of the passengers, or possibly where it customarily  would          have done  so," 545 F.2d at  283 n.4), argues that  Article 17 is          nonetheless  available because  Northwest had  "absolute control"          over  her once its agent  had "confiscated" her passport, ticket,          and  boarding pass.  This  attempt to fly  over hostile territory          ends in a crash landing.                    In  the first  place, after  we discard  the rhetorical          flourishes and focus  on the facts, see, e.g.,  Medina-Munoz, 896                                              ___  ____   ____________          F.2d at 8  (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.   McCarthy produced no  evidence tending to  show that she          was  obliged  to  take the  escalator  on  which  she  fell as  a          prerequisite to  embarking.   Likewise, she produced  no evidence          suggesting that the ticket agent refused a timely request to slow          down or to return her travel documents.  If the plaintiff did not          desire to follow the  agent down the escalator "at  a fast trot,"                                          13          she had  the ability  to  proceed at  her own  pace,  to take  an          alternate route, or simply to await a later flight.                    In  the second place, even were we to conclude that the          agent's  peremptory instructions, coupled  with the possession of          plaintiff's travel  documents, constituted a  kind of  "control,"          this,  alone, would  not  be  enough  to  bridge  the  moat  that          surrounds Article 17.  If it were, the Day/Evangelinos test would                                                 _______________          be a hoax, for two of its three prongs    activity and location            would  be rendered inoperative, and  the third    control   would          lack the nexus with the others that informed the final version of          Article  17.    At  bottom,  plaintiff's  activity  had  only  an          attenuated  connection  with  entering  an aircraft,  and  it  is          augmented  by nothing  more than  an indulgent  interpretation of          control.  Thus, these factors  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  we reject it.  But we think that the plaintiff          reads the dictum  through rose-colored glasses.   After all,  the          Martinez  Hernandez court held that  Article 17 did  not apply on          ___________________                                  ___          the facts  of that case,  see 545 F.2d  at 282, and  this holding                                    ___          indicates that the court  never intended to throw open  the gates          of Article  17 as widely as McCarthy suggests.  Nor has any other          court done so.3  We will not be the first.                                        ____________________               3To  be sure, a somewhat  similar dictum is  found in Knoll,                                                                     _____          where the court  wrote of judicial reluctance to  extend coverage          under  the Warsaw  Convention  "to injuries  incurred within  the                                          14          IV.  CONCLUSION          IV.  CONCLUSION                    Having dismissed the notion that the Martinez Hernandez                                                         __________________          dictum demands a repudiation  of the result reached by  the court          below, we taxi  toward the hangar.  Scrutinizing the evidence  of          record  in  the  ambience  most soothing  to  the  plaintiff, and          applying settled legal principles, a rational jury could not find          that,  at the time of the injury, McCarthy was "embarking" within          the  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."  Knoll, 610 F. Supp. at 846          ___________________________________    _____          (emphasis supplied).  But in Knoll, as in Martinez Hernandez, the                                       _____        __________________          court's  holding belies  the implication  that McCarthy  seeks to          derive from  it.  To be  specific, the court held  that Knoll was          not embarking  where, after airline agents  advised passengers to          proceed to  immigration, she slipped as she approached that area.          Id. at  847.  In  so holding,  the court stressed  that the  many          ___          activities   yet  to  be   performed,  e.g.,  proceeding  through                                                 ____          immigration  and  customs, were  not  conditions  imposed by  the          airline, but, rather, were conditions imposed by the host country          in which plaintiff was traveling.  See id.                                             ___ ___                                          15
