Depending on the circumstances, he may or may not have been "embarking" within the meaning of Article 17. If he was turned away at the check-in counter when he presented his travel documents, he was not embarking. Kalantar v. Lufthansa German Airlines , 276 F. Supp. 2d 5, 12-13 (D.D.C. 2003) (citing McCarthy , 56 F.3d at 317 ). If he was brought to a customer-service desk and told that he could not board while in a common area inside the terminal, he likely was not embarking.

Whether a passenger was "engaged in the course of embarking an airline flight" requires inquiry into "(1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the degree of control exercised by the carrier at the moment of the injury." See Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1260 (2002), Kalantar v. Lufthansa German Airlines, 276 F. Supp. 2d 5, 10 (D.D.C 2003). "Courts also consider the imminence of the passenger's actual boarding of the flight in question."

In this filing, the United States asked the court to decide whether Kalantar's need to obtain the FAA directive was moot in light of the possible preemptive effect of Article 17 of the Warsaw Convention. On August 7, 2003, the court ruled that Article 17 of the Warsaw Convention did not preempt Kalantar's claims, and that therefore defendants could refile their motion for summary judgment as redacted by the Transportation Security Administration. This motion, seeking summary judgment on all counts, is now before the court. For a comprehensive account of the procedural history of this case, see Kalantar v. Lufthansa German Airlines, 276 F. Supp. 2d 5, 7-9 (D.D.C. 2003). Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in note following 49 U.S.C. § 40105.

Id. (emphasis added). As with the interpretations of the same phrase in the Jones Act, courts look to the nature of the passenger's activity, under whose control or direction the passenger was acting, and the location of the passenger's activity to determine whether the damage or injury occurred "in the course of" embarking or disembarking. Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975); seealso Dazo v. Globe Airport Security Services, 268 F.3d 671, 677 (9th Cir. 2001); Kalantar v. Lufthansa German Airlines, 276 F. Supp. 2d 5 (D.D.C. 2003). "Location should not be considered alone . . . when determining if plaintiff was in the course of embarking upon defendant's flight.

The term `carrier' used in Articles 17 and 19 is not defined in the Convention, but is a question of law the court must determine. Marotte v. American Airlines, Inc., 296 F.3d 1255, 1259 (11th Cir. 2002); Kalantar v. Lufthansa German Airlines, 276 F. Supp.2d 5 (D.D.C. 2003). The term carrier, as used in the Convention, means the airline which "actually transport[s] the passengers or baggage."

As Plaintiff obviously was neither on board an aircraft nor disembarking from one at the time of her alleged injuries, Article 17 of the Warsaw Convention will govern Plaintiff's claims only if the incident occurred while she was in the course of embarking. See Kalantar v. Lufthansa German Airlines, 276 F. Supp.2d 5, 10 n. 6 (D.D.C. 2003). A number of courts, including our Court of Appeals, have identified three factors relevant to determining whether a passenger was engaged in the course of embarking on an international flight: (1) the passenger's location at the time of the injury; (2) the passenger's activity at the time of the injury, and (3) the degree of control the airline was exercising over the passenger when the injury occurred.