Marotte v. American Airlines, Inc., 01-15566.

• Decision Date: 12 July 2002
• Docket Number: No. 01-15566.,01-15566.
• Citation: 296 F.3d 1255
• Parties: Richard C. MAROTTE, Sr., Olympia Marotte, his wife, Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., a foreign corporation, Madeline Barrett, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

296 F.3d 1255

Richard C. MAROTTE, Sr., Olympia Marotte, his wife, Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., a foreign corporation, Madeline Barrett, Defendants-Appellees.

No. 01-15566.

United States Court of Appeals, Eleventh Circuit.

July 12, 2002.

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Ronald Cohen, New York City, for Plaintiffs-Appellants.

Nancy H. Henry, Carlton Fields, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, COX and MAGILL^*, Circuit Judges.

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 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 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 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, 111 S.Ct. 1489, 113 L.Ed.2d 569 (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.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, 119 S.Ct. 662, 142 L.Ed.2d 576 (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, 119 S.Ct. 662 ("[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 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 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 imminence...