the warsaw convention applies to a passenger’s tort claims arising from an alleged assault by an airline employee that took place while the passenger was trying to enter the airport jetway to board his flight

A passenger and his wife commenced an action against an airline and one of the airline’s employees, alleging that the airline employee punched or pushed the passenger while he and his wife were attempting to enter a jetway at Miami International Airport to board a flight to New York, resulting in his hospitalization.  The passenger and his wife asserted several claims against the airline, including negligent hiring, negligent supervision, negligent retention, assault and battery, intentional infliction of emotional distress, defamation, breach of contract, and loss of consortium.  At summary judgment, the airline asserted that all of the claims asserted by the passenger and his wife were governed by the Warsaw Convention and barred by its two-year statute of limitations.

The district court granted the airline’s motion for summary judgment, finding that the alleged assault occurred “in the course of any of the operations of embarking,” bringing it within the ambit of the Warsaw Convention.  As the passenger and his wife did not file their claims within two years, the district court held that those claims were barred by the Warsaw Convention’s two-year statute of limitations.

Initially, the district court noted that the Warsaw Convention holds airlines strictly liable for personal injuries arising from accidents, which can include intentional misconduct, that occur in international transportation, so long as the accidents occur on board the aircraft or “in the course of any of the operations of embarking or disembarking.”  In fact, the district court recognized that, if recovery for personal injuries suffered during embarking is not allowed under the Warsaw Convention, it is not allowed at all.  See El Al Israel Airlines Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999).  Accordingly, the question before the court was whether the passenger and his wife were embarking within the meaning of the Warsaw Convention, a question that the district court recognized is one of fact.  See Schmidkunz v. Scandinavian Airlines System, 628 F.2d 1205, 1207 (9^th Cir. 1980).

The alleged assault by the airline employee, a gate supervisor, purportedly occurred as the passenger and his wife walked toward the glass door that leads to the gate to board the aircraft.  According to the passenger and his wife, the supervisor prevented them from entering by ordering the door closed and  directing other airline personnel not to let them board the flight, as she punched or pushed the passenger, causing his injuries.   The district court noted that courts look to several factors to determine whether a passenger is in the course of embarking, including: (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 injury.  The district court determined the facts demonstrated that the passenger and his wife were in the process of embarking at the time of the passenger’s injuries.  While the passenger attempted to establish that the airlines employee prevented him from embarking, the district court stated that the applicability of the Warsaw Convention “is not dependent upon the success of embarkation, but rather on whether the accident in question took place during the process of embarkation.”

Marotte v. American Airlines, Inc.,
14 Fla. L. Weekly Fed. D523 (S.D. Fla. Aug. 29, 2001).