OPINION AND ORDER

JOHN F. KEENAN, United States District Judge.

INTRODUCTION

Before the Court is the motion of Defendant, British Airways, for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff, Harley Price, seeks damages for injuries allegedly sustained on one of Defendant's airplanes. For the reasons set forth below, Defendant's motion is granted.

BACKGROUND

On January 29, 1991, Plaintiff was a ticketed passenger aboard a British Airways flight departing from New York to London with an intermediate stop in Manchester, England. During the flight from New York to Manchester, Plaintiff consumed several drinks of alcoholic beverages. After the aircraft had safely landed and had taxied to the gate at Manchester, Plaintiff exchanged words with another passenger in the rear of the aircraft. Plaintiff was subsequently punched in the face and suffered a bloody nose. It is unclear which passenger punched Plaintiff in the face.

After consulting with the captain of the aircraft, the Manchester police arrested the Plaintiff and escorted him to the local police station. Approximately eight hours later, Plaintiff was released. Plaintiff then continued to Heathrow Airport in London on a British Airways flight and was given ground transportation between Heathrow Airport and Gatwick Airport.

Plaintiff's complaint advances two claims. The first claim alleges that Defendant is strictly liable to Plaintiff in the amount of $75,000 for any injuries sustained by Plaintiff during the flight. The second claim alleges that the wilful misconduct of Defendant in its operations and control of the flight caused Plaintiff's injuries. In his second claim, Plaintiff alleges that Defendant is liable for damages in the amount of $1,000,000.

DISCUSSION

Fed.R.Civ.P. 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1936). A motion for summary judgment may be granted under Rule 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990); see Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). "Summary judgment is appropriate if . . . `no reasonable trier of fact could find in favor of the non-moving party.'" United States v. All Right, Title Interest in Real Property, etc., 901 F.2d 288, 290 (2d Cir. 1990) (quoting Murray v. National Broadcasting Co., Inc., 844 F.2d 988, 992 (2d Cir.), cert. denied, 109 S.Ct. 391 (1988)). In making this determination, the district court may not resolve issues of fact; it may only ascertain whether such issues are present. See Donahue v. Windsor Locks Bd. of Fire Cm'rs, 834 F.2d 54, 58 (2d Cir. 1987). The non-movant, in response to a properly supported motion for summary judgment, may not rest on the allegations in its pleadings, but must adduce "significant probative supporting evidence" demonstrating that a factual dispute exists. Anderson, 477 U.S. at 249.

Count I

As discussed above, Plaintiff's first claim alleges that Defendant is strictly liable to Plaintiff in the amount of $75,000 for any injuries sustained by Plaintiff during the January 29, 1991 flight from New York to Manchester. Defendant argues that it is not liable to Plaintiff as a matter of law because the alleged incident is not an "accident" within the meaning of the Warsaw Convention. The Court agrees. Defendant's motion is therefore granted.

Both Plaintiff and Defendant concede that this action is governed by the provisions of the Warsaw Convention. Pursuant to Article 1(1), the Warsaw Convention applies "to all international transportation of persons, baggage or goods performed by aircraft for hire." 49 Stat. 3014. Article 17 of the Warsaw Convention sets forth the circumstances under which a carrier may be liable to passengers on international flights:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

In Saks, the Supreme Court defined the term "accident" as it must be construed under Article 17 of the Convention:

We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger' s injuries.

The incident in this case was not an "accident" within the meaning of Article 17. In Margrave v. British Airways, 643 F. Supp. 510 (S.D.N.Y. 1986), Judge Leisure of this court held that a passenger who allegedly sustained injuries as the result of being forced to remain seated in a "cramped position" during a flight delay had not suffered an accident within the meaning of Article 17. In Padilla v. Olympic Airways, 765 F. Supp. 835 (S.D.N.Y. 1991), Judge Conner of this court held that an airline was not liable under Article 17 for a passenger's injuries where the passenger voluntarily consumed numerous alcoholic drinks and was injured during a fall in the lavatory. The court concluded that the plaintiff's injury was not caused by an "external" accident, but by plaintiff's internal reaction to his voluntary intoxication. Padilla, 765 F. Supp. at 838.

In Chumney v. Nixon, Civil No. C-76-490 (W.D. Tenn. 1982), the court concluded that a fight between two passengers is not an "accident" within the meaning of the Warsaw Convention. In addition, Professor Goedhuis, the Reporter at the drafting of the Warsaw Convention, addressed precisely the issue at bar in his treatise on the Convention: "In the example . . . in which a passenger is injured in a fight with another passenger, it would be unjustifiable to declare the carrier liable by virtue of article 17, because the accident which caused the damage had no relation with the operation of the aircraft." Likewise, in the case at hand, the incident Plaintiff complains of bears no relation to Defendant's operation of the aircraft. This Court therefore concludes that Plaintiff's injuries were not the result of an "accident" within the meaning of the Warsaw Convention.

Count II

Plaintiff's second claim alleges the wilful misconduct of Defendant in its operations and control of the flight caused Plaintiff's injuries.

Plaintiff contends that while the Warsaw Convention speaks of "accidents", it does not bar causes of action for intentional torts. Plaintiff's Memorandum of Law In Opposition To Motion For Summary Judgment at 8. In support of this contention, Plaintiff cites cases where terrorist actions and hijackings have been construed as "accidents" within the meaning of Article 17. Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977) (terrorist attack); Krystal v. British Overseas Airways Corp., 403 F. Supp. 1322 (D.C. Cal. 1975) (hijacking).

However, as Defendant points out, the fundamental premise relied upon by the courts to expand carrier liability to include hijackings and terrorist attacks is that such risks are characteristic of air travel. Martinez Hernandez v. Air France, 545 F.2d 279 (1st Cir. 1976), cert, denied, 430 U.S. 950 (1977). In addition, carriers are in the best position to guard against terrorist actions and hijackings. Day v. Trans World Airlines, 528 F.2d 31, 34 (2d Cir. 1975), cert. denied, 429 U.S. 890 (1976). To suggest that a fistfight between two passengers is a characteristic risk of air travel is absurd. Such a fracas is not a characteristic risk of air travel nor may carriers easily guard against such a risk through the employment of protective security measures.

The incident in Plaintiff's complaint is clearly not an "accident" under Article 17. Further, this Court concludes that there is no basis for holding Defendant liable under an intentional tort theory under the undisputed facts of this case. Defendant therefore is entitled to summary judgment.

CONCLUSION

For the reasons set forth above, Defendant's motion for summary judgment is granted. The complaint is dismissed. This action is ordered removed from the active docket of this Court.

SO ORDERED.

JUDGMENT

Defendant having moved for summary judgment pursuant to F.R.Civ.P. 56, and the said motion having come before the Honorable JOHN F. KEENAN, U.S.D.J., and the Court thereafter on July 1, 1992, having handed down its opinion and order (#70062); granting defendant's motion for summary judgment, and dismissing the complaint, and removing the action from the active docket of the Court, it is,

ORDERED, ADJUDGED AND DECREED: That defendant's motion for summary judgment be and it is hereby granted, and it is further,

ORDERED, that the complaint be and it is hereby dismissed for the reasons set forth in the Court's Opinion and Order, dated July 7, 1992, and it is further,

ORDERED, that the action be and it is hereby removed from the active docket of the Court.