Richard C. Marotte, Sr. v. American Airlines, Inc.

[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

3
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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