[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 12, 2002
No. 01-15566
THOMAS K. KAHN
_________________________ CLERK
D. C. Docket No. 00-03425-CV-AJ
RICHARD C. MAROTTE, SR.,
OLYMPIA MAROTTE, his wife,
Plaintiffs-Appellants,
versus
AMERICAN AIRLINES, INC., a foreign corporation,
MADELINE BARRETT,
Defendants-Appellees.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(July 12, 2002)
Before TJOFLAT, COX and MAGILL*, Circuit Judges.
_____________________________________________
*Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
MAGILL, Circuit Judge:
Richard C. Marotte, Sr., and Olympia Marotte, husband and wife, appeal the
district court's adverse grant of summary judgment in favor of American Airlines.
See Marotte v. Am. Airlines, Inc., 159 F. Supp. 2d 1374 (S.D. Fla. 2001). This
case arises out of an incident that occurred in the Miami Airport on the final leg of
the Marottes's international flight from New York to the Bahamas. The issue
presented on appeal is one of first impression in this circuit. Our jurisdiction is
proper pursuant to 28 U.S.C. § 1291. For the reasons stated below, we affirm.
I.
For purposes of this appeal, the following facts are undisputed. On August
20, 1996, Mr. Marotte, Mrs. Marotte, their son Richard, and his girlfriend
attempted to board their scheduled American Airlines flight from Miami to New
York. The flight in question was to be the final leg of their round-trip travel from
New York to the Bahamas. Upon arrival at the gate, Mrs. Marotte searched for,
but was unable to find, the party's tickets and boarding passes. Nevertheless, Mr.
Marotte asked the gate attendant if his party could board the plane because
computer records showed that the tickets had been paid for and that seat
assignments had already been assigned. Also, Mr. Marotte explained to the
attendant on duty that he wanted to board the plane as soon as possible because he
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recently had heart bypass surgery, was diabetic, and at that time was not feeling
well. In response, the gate attendant called her supervisor, Madeline Barrett, who
informed Mr. Marotte that he would have to purchase new tickets if he wanted to
board the flight. Despite Barrett's rebuke, Mr. Marotte repeatedly requested to
board the plane because of his condition. His requests, however, were of no avail
because Barrett refused to permit the Marotte party to board without buying new
tickets.
In an attempt to solve this dispute, Mr. Marotte called American Express, the
company through whom he had initially purchased the tickets, to see if it would
pay for a new set of tickets. During this time, Mrs. Marotte found all of the tickets
and boarding passes in her pocketbook. As a result, Barrett began to yell at Mrs.
Marotte saying that if she had not been so lazy in searching for and negligent in not
finding the tickets, she (Barrett) would not have had to go through so much
trouble. Mr. Marotte complained to Barrett about her behavior, and Mrs. Marotte
took down Barrett's name to report her actions.
With the Marotte party still in possession of their tickets and boarding
passes, they started walking toward the glass door that leads to the jetway. Before
passing through, Barrett ordered that the door be shut. Next, Barrett began yelling
at the party, got up out of her chair, and approached Mr. Marotte. Barrett then
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punched or pushed Mr. Marotte in the chest, and as a result Mr. Marotte was
knocked against the door and fell to the ground. Barrett then kneeled on top of Mr.
Marotte, grabbed all of the party's tickets and boarding passes, tore them up, called
security, told security to call the police, and directed other airline personnel not to
let the Marotte party board the plane.
Eventually, Mr. Marotte was taken by ambulance to a hospital, where he
remained for a number of days. Mrs. Marotte stayed in Miami with her husband
until he was released from the hospital. The Marottes's son and his girlfriend
returned to New York the next day.
Almost four years later, on August 18, 2000, the Marottes filed their
complaint against American Airlines and Barrett in state court in Miami, Florida,
claiming numerous counts against each party. Marotte, 159 F. Supp. 2d at 1376.
On September 13, 2000, the case was removed to the United States District Court
for the Southern District of Florida. Upon removal, American Airlines moved for
summary judgment on the grounds that the action was governed by the Convention
for the Unification of Certain Rules Relating to International Transportation by
Air, signed at Warsaw, on October 12, 1929 (the "Warsaw Convention" or
"Convention"), 49 Stat. 3000, T.S. 876 (1934), reprinted in note following 49
U.S.C. § 40105 (1994) (hereinafter "49 U.S.C. § 40105"). If governed by the
4
Warsaw Convention, American Airlines argued, the Marottes's action was barred
by that Convention's two-year limitations period.1 On August 29, 2001, the district
court granted American Airlines's motion for summary judgment on the grounds
that because the Marotte party was "in the course of embarking" their intended
flight within the meaning of the Warsaw Convention, the Marottes's action was
time-barred by the Convention's two-year statute of limitations.
On appeal, both parties agree that the Marottes's claims, if covered by the
Convention, are time barred because the Marottes completed their travel on or
about August 21, 1996, but did not file suit until August 18, 2000, nearly four
years after their travel was completed. In light of this, we now determine whether
the Convention, and its two-year limitations period, applies.
II.
A. Legal Background
The Warsaw Convention was signed in 1929 in order to aid and assist the
then-fledgling commercial airline industry. E. Airlines, Inc. v. Floyd, 499 U.S.
530, 546 (1991); see also King v. Am. Airlines, Inc., et al., 284 F.3d 352, 356 (2d
Cir. 2002); McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315-16 (1st Cir.
1
The limitations period established by Article 29 of the Warsaw Convention provides that
"[t]he right to damages shall be extinguished if an action is not brought within 2 years, reckoned
from the date of arrival at the destination, or from the date on which the aircraft ought to have
arrived, or from the date on which the transportation stopped." 49 U.S.C. § 40105.
5
1995). In order to achieve this aim, the Convention sets forth uniform rules for
claims that arise out of incidents that occur during international air transportation.
El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999). 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. Id. at 161 ("[R]ecovery for a personal injury
suffered 'on board [an] aircraft or in the course of any of the operations of
embarking or disembarking,' if not allowed under the Convention, is not available
at all.") (citations omitted). This is so because "[r]ecourse to local law . . . would
undermine the uniform regulation of international air carrier liability that the
Warsaw Convention was designed to foster." Id. Article 17 of the Warsaw
Convention holds airlines strictly liable for personal injuries that occur in the
course of an international flight.2 It provides:
[An airline] carrier shall be liable for damage sustained in the event of
the death or wounding of a passenger or any other bodily injury
suffered by 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.
49 U.S.C. § 40105 (emphasis added). Thus, to satisfy Article 17's carrier liability
2
For those interested in a thorough historical analysis regarding Article 17, we direct your
attention to the Second Circuit's opinion in Day v. Trans World Airlines, Inc., 528 F.2d 31, 34-
38 (2d Cir. 1975).
6
provision, a plaintiff must establish three requirements: (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. Here, neither party disputes that Barrett's intentional misconduct
satisfies the first prong of the analysis;3 nor does either party dispute that an actual
injury occurred. Accordingly, the only substantive question with which this court
is faced is whether, on the facts before us, the Marottes were "embarking" within
the meaning of the Warsaw Convention.
The terms "embarking" and "disembarking" are not specifically defined in
the Convention. Despite the Marottes's contention to the contrary, however, the
definition of the term "embarking" within the Warsaw Convention is a question of
law to be decided by the court, not one of fact to be decided by the jury. Blake v.
Am. Airlines, Inc., 245 F.3d 1213, 1215 (11th Cir. 2001) ("Construction of the
Warsaw Convention is a question of law."). That is, its interpretation is left up to
3
For purposes of this opinion we will assume, without deciding, that Barrett's conduct is
considered an "accident" as contemplated by the Convention because neither party disputes the
district court's conclusion on this score. We do note, however, that the Supreme Court has
defined the term "accident" under the Convention as "an unexpected or unusual event or
happening that is external to the passenger," Air France v. Saks, 470 U.S. 392, 405 (1985), and
that other courts of appeals have found intentional misconduct to be covered under the
Convention's definition of "accident." See, e.g., King, 284 F.3d at 360; Carey v. United Airlines,
255 F.3d 1044, 1048-49 (9th Cir. 2001); Wallace v. Korean Air, 214 F.3d 293, 298-300 (2d Cir.
2000).
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the courts and is dependant upon the facts of each case. Schmidkunz v.
Scandinavian Airlines Sys., 628 F.2d 1205, 1207 (9th Cir. 1980). Therefore, we
must now determine whether, on the undisputed facts stated above, the Marottes
were "in the course of any of the operations of embarking."
As noted above, the term "embarking" is not defined in the treaty, nor has
this court had an opportunity to define the contours of the term. However, this
does not mean that we write on a clean slate. In fact, numerous courts of appeals
decisions from other circuits have addressed this issue. Our opinion today joins in
the reasoning of our sister circuits.
Generally, when determining whether an airline is liable under Article 17 of
the Warsaw Convention, courts employ a totality of the circumstances approach.
Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1262 (9th Cir. 1977).
In making this determination, 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. See, e.g., McCarthy, 56 F.3d at 317; Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 617 (7th Cir. 1989); Evangelinos v.
Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir. 1977) (en banc); Maugnie,
549 F.2d at 1261-62; Day, 528 F.2d at 33. Additionally, courts also consider the
8
imminence of the passenger's actual boarding of the flight in question. Buonocore
v. Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir. 1990). Under this analysis,
no single factor is dispositive, and the three factors form a "single, unitary
[analytical] base." McCarthy, 56 F.3d at 317. However, because the term
"embarking" evokes a "close temporal and spatial relationship with the flight
itself," a close connection between the accident and the physical act of boarding the
aircraft is required. Id. at 316-17.4
B. Legal Analysis
Viewing the total circumstances surrounding the incident in question, with
particular emphasis placed on location, activity, control, and the imminency of the
intended flight, leads us to the firm conclusion that any injury that Mr. Marotte
suffered due to the attack by Barrett occurred in the process of embarking, as
contemplated by the Warsaw Convention. First, as the Marottes readily admit, the
party had their boarding passes in hand and were attempting to board the plane
4
Seemingly ignoring these cases, the Marottes asks us "to adopt the view that a passenger
is only 'embarking' after the ticket has been collected and honored for travel and the passenger is
passed through [the] gate check where the boarding stub is given [sic] the passenger to be
examined by the attendant on the plane." In other words, the Marottes ask this court to draw a
bright-line at, what appears to be, the actual doorway to the jetway leading to the aircraft. Such
a position based on arbitrary line-drawing "is both too arbitrary and too specific to have broad
application." Evangelinos, 550 F.2d at 155; see also Buonocore, 900 F.2d at 10 (drafters of the
Warsaw Convention "intended a flexible approach which would adapt to the changing conditions
of international air travel over the years"). Because treaties should generally be read to have
broad applicability, we reject the Marottes's position and adopt the broader position of at least
five other circuits.
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when the attack took place. This is significant because it shows that the Marottes
had already passed through security and were in a section of the airport that is not
open to the general public, but rather only to ticketed passengers. McCarthy, 56
F.3d at 318. Further, it evinces that the Marottes had satisfied almost all of the
conditions precedent to boarding. Id. at 317; see also Evangelinos, 550 F.2d at
156; Day, 528 F.2d at 33. Second, the door into which Mr. Marotte was pushed
was the door leading to the actual aircraft he had hoped to board, evincing an
extremely close spatial relationship between the attack and the aircraft. Third, as
the facts clearly show, American Airlines exerted much control over the Marottes.
By taking their boarding passes and tickets and forbidding them access to the
jetway that led to the airplane they wished to board, American Airlines, through its
employee Barrett, exerted control over the entire Marotte party. Furthermore, by
jumping on top of Mr. Marotte, Barrett physically prevented him from boarding his
intended flight.5 It is difficult to imagine a situation that more clearly establishes
control then the act of physical restraint. Finally, it is apparent from the facts
5
Any suggestion by the Marottes's counsel that finding the Warsaw Convention
applicable would reward American Airlines for Barrett's behavior, and effectively deny the
Marottes any remedy under the law, is undermined by our decision today. By finding the
Convention applicable to the facts before us, our opinion makes clear that the Marottes had a
remedy under the Warsaw Convention so long as they filed suit within two years of completing
their intended travel. For whatever reason, however, the Marottes failed to file within the
required two-year window and accordingly their claims are barred by the Convention's
limitations period.
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before us that the flight in which the Marottes were attempting to board was
imminent. All the Marottes had to do was pass through the glass door, which
Barrett ordered closed, walk down the jetway, and take their seats. The fact that
they were prevented from doing so, without more, does not take this case, on the
facts before us, out of the purview of the Warsaw Convention. Viewing the
surrounding facts in totality, as we must, we conclude that the Warsaw Convention
applies to the Marottes's claims, and therefore those claims are barred by the
Convention's two-year limitations period.6
III.
Accordingly, we affirm the district court's grant of summary judgment in
favor of American Airlines. To find the Warsaw Convention inapplicable would
require us to draw a bright-line at the jetway or the actual door of the aircraft. We
decline to do so for the reasons set forth above.
AFFIRMED.
6
Because the Marottes did not raise the issue of failure to provide medical assistance
below, the issue has been waived. Leal v. Ga. Dept. of Corr., 254 F.3d 1276, 1280 (11th Cir.
2001).
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