Montreal Convention Developments: Accident While Walking to Customs Does Not Satisfy Requirement of Occurrence During "Operations of Disembarking"

ABSTRACT: The U.S. District Court for the Eastern District of Louisiana rules that, after disembarking from an aircraft, where there is no evidence of airline control over a passenger walking to customs in a corridor of the terminal, the plaintiff passenger fails to establish the "disembarking" element for tort claims against airlines pursuant to the Montreal Convention, Article 17(1).

On June 3, 2015, the U.S. District Court for the Eastern District of Louisiana granted summary judgment to defendant Lufthansa on plaintiff Boyd’s tort claim for personal injuries brought under the Montreal Convention. The Court ruled that plaintiff failed to provide any evidence that her injuries occurred while she was “in the course of any of the operations of … disembarking,” the aircraft, a crucial element of the cause of action.

Facts

Plaintiff Fay Boyd, after stepping off a Lufthansa flight and while walking in a wide corridor of the airport terminal heading towards Customs, alleged that she was knocked to the ground by another passenger, causing her to fall and break her hip.  Boyd sued the airline pursuant to the Montreal Convention for her injuries.[1]  Plaintiff alleged that, while she was walking toward Customs, another passenger collided with plaintiff, knocking her to the ground and causing her injury. 

Plaintiff Failed to Show She Was in the Process of Disembarking.

Article 17(1) of the Montreal 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.”  (Emphasis added.) Courts have looked at three factors when considering whether a passenger is in the course of disembarking:  1) the passenger’s activity at the time of the injury, 2) the passenger’s location, and 3) the extent to which the carrier exercising control over the passenger at the time of the injury.

Ultimately, the Court ruled that plaintiff failed to provide any evidence that the carrier was exercising any control over plaintiff at the time of the injury.  The Court dismissed plaintiff’s claims, noting that the Montreal Convention ordinarily does not provide relief for an incident occurring in a terminal unless the plaintiff is “clearly under the direction of the airlines.”  Ms. Boyd’s incident occurred in the terminal, and there was no evidence that she was directed by a Lufthansa employee, nor that the other passenger involved was from a Lufthansa flight or that she was in any way acting under the direction of the carrier.

Guidance for What Constitutes an “Accident” Under the Montreal Convention

Although the case was not decided upon the following grounds, the Court in dicta discussed what constitutes an “accident” under the Montreal Convention.  .  The Court noted that, when determining whether a claim may be made against a carrier as a qualifying “accident,” some courts have looked at whether the evidence demonstrates:  1) an unusual or unexpected event external to the plaintiff, and 2) that the event involved an abnormality in the aircraft’s operations.  As has long been the law, under the first prong, plaintiffs must show that the accident was the cause of the injury, versus an injury unto itself.  See Air France v. Saks, 470 U.S. 392, 398 (1985).  Of interest, the second prong noted by the Louisiana court is not applicable in all jurisdictions.  The Louisiana Court, however, noted that, “it appears to reasonably probe a link between the passenger’s injury and the defendant airline …”   Factors for consideration include failures or omissions of crew.