The Eleventh Circuit has deduced three requirements that must be established to satisfy Article 17: "(1) an accident must have occurred; (2) injury or death must have occurred; and (3) the preceding two conditions must have occurred while "embarking or disembarking" or during the flight itself. Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1259 (11th Cir. 2002) (emphasis added). Element (2) is not at issue in this case, so the Court will focus its evaluation on elements (1) and (3).
Airlines, Inc., 296 F.3d 1255, 1258-59 (11th Cir. 2002); see also El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999)
As well-explained in many federal and state court decisions, the Warsaw Convention was signed in 1929 to aid and assist the then-fledgling commercial airline industry. See Marotte v. Am. Airlines, Inc., 296 F.3d 1255 (11th Cir. 2002). To achieve this aim, the Convention sets forth uniform rules for claims arising out of incidents that occur during international air transportation.
In applying these terms, we consider the totality of the alleged circumstances. Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir.2002). Three factors are particularly relevant: “(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 amount of control exercised by the carrier at the moment of the injury.”
McCarthy, 56 F.3d at 317 (interpreting meaning of "embarking" and "disembarking" under Convention). Therefore, the question [of] whether a passenger's injury was sustained "on board the aircraft or in the course of any of the operations of embarking or disembarking," Convention art. 17, "is a question of law to be decided by the court" based on the facts of each case, Marotte v. American Airlines, Inc., 296 F.3d 1255, 1259 (11th Cir. 2002). See also Schmidkunz v. Scandinavian Airlines Sys., 628 F.2d 1205, 1207 (9th Cir. 1980) (same).
Both the Supreme Court and the Eleventh Circuit have concluded “the Montreal Convention ‘is the exclusive mechanism of recovery for personal injuries suffered on board an aircraft.'” Vanderwall v. United Airlines, Inc., 80 F.Supp.3d 1324, 1335 (S.D. Fla. 2015) (quoting Marotte v. Amer. Airlines, Inc., 296 F.3d 1255, 1259 (11th Cir. 2002)); El Al Isr. Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999) (holding that “the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law.”).
Further, the Montreal Convention provides the exclusive remedy to persons who suffer damages related to a covered international flight, thereby preempting any state law claims. El Al Israel Airlines, Ltd., 525 U.S. at 174-76; Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1259-60 (11th Cir. 2002). Article 24 of the Montreal Convention provides in relevant part: "In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention."
See Docket No. 43 at 8; Tseng, 525 U.S. at 161 ("We therefore hold that recovery for a personal injury suffered `on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' Art. 17, 49 Stat. 3018, if not allowed under the Convention, is not available at all."); Marotte v. American Airlines, Inc., 296 F.3d 1255, 1260-61 (11th Cir. 2002) (finding that Convention's two-year limitation period applied because plaintiffs were in process of embarking aircraft — boarding passes in hand, at gate, attempting to board — when attacked); King v. American Airlines, Inc., 284 F.3d 352, 355 (2nd Cir. 2002) (discrimination claims that arise in course of embarking (plaintiffs boarded bus transporting them from terminal to aircraft) are preempted by Article 17). Article 17 of the Convention provides that a carrier "is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
See also Magan v. Lufthansa German Airlines, 339 F.3d 158, 161 (2d Cir. 2003) ("A passenger whose injuries fall within the scope of the Warsaw Convention is either entitled to recovery under the Convention or not at all"). The Eleventh Circuit followed Tseng in Marotte v. American Airlines, Inc., 296 F.3d 1255 (11th Cir. 2002), when it granted summary judgment for the airlines on multiple state law claims associated with alleged assault by a flight attendant. "The Supreme Court has held that the Warsaw Convention is the exclusive mechanism of recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane."
The Second and Eleventh Circuits have also recognized a fourth factor, the imminence of final boarding, as part of this inquiry. See, e.g., Marotte v. American Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir. 2002); Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir. 1990). As our Court of Appeals has not examined imminence to final boarding, see Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 617-18 (7th Cir. 1989), and the parties here do not mention it, the court declines to consider this factor.