What is ‘embarking and disembarking’ for the purposes of the Montreal Convention?

A commonly encountered question for those dealing with claims concerning injury suffered by aircraft passengers is whether or not the accident leading to the injury occurred in the course of embarkation or disembarkation. Whilst tempting to think this might be a simple question with a simple answer, the issue is one on which parties frequently disagree and there is no authoritative judgment definitively outlining the parameters of (dis)embarkation.  Set out below is a summary of the some of the key cases on the point.

Background to the Montreal Convention

The Montreal Convention 1999[1] is the most recent of the Carriage by Air Conventions (the first being the Warsaw Convention) and has the force of law in the UK law by virtue of the Carriage by Air Act 1961 s1 and Sch 1B, as amended by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002[2], art 2(2). The intention of the Montreal Convention, stated in the preamble to the Convention, is to harmonise and codify international air law, to protect the interests of consumers and provide equitable compensation whilst allowing for the ‘orderly development of international air transport operations and the smooth flow of passengers’ (the air travel industry being in its infancy when the Warsaw Convention was adopted in 1929).

The Montreal Convention applies[3] to all international carriage of persons, baggage or cargo by aircraft for reward, and to gratuitous carriage performed by an air transport undertaking[4]. Domestic carriage within the UK is also covered pursuant to the Carriage by Air Acts (Application of Provisions) Order 2004.[5]

Where the Convention applies, it provides an exclusive remedy. Article 29 stipulates that any action for damages (by the passenger against the carrier) whether under this Convention, in contract, tort or otherwise, can only be brought subject to the conditions and limits of liability set out in the Convention. i.e. if a claim against the carrier is not allowed under the Convention, it is not available at all[6].

Article 17(1) defines the liability of the carrier to passengers:  

“The 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.”

Interpretation of the Convention

In some cases it will be obvious that a passenger was injured in the course of (dis)embarkation. For example:

• In Mather v Easyjet Airline Co Ltd[7] the pursuer was injured when he fell from his wheelchair whilst being pushed along an air bridge by a member of staff. There was a dispute between the first and second defenders as to whether the member of staff was their agent, but no dispute was raised that the accident occurred in the course of disembarkation.

• In Ricotta v Iberia Lineas Aerea de Espana[8] the plaintiff fell out of an Iberian airline bus taking passengers from the airplane to the airport terminal. Only after passengers had been through Spanish immigration would they be permitted to retrieve their baggage and go through customs to the public areas of the airport. The Court noted that although the plaintiff had descended from the plane, she had neither reached a safe point inside the terminal nor left the control of Iberia personnel. The Court found that she was in the course of disembarkation.

It is where the accident circumstances are less obviously in the course of (dis)embarkation that argument as to the intended meaning of the Convention arises. The Convention is a multilateral international agreement and is not therefore subject to domestic rules of statutory interpretation. It must be interpreted in light of its object and purpose (to which end examination of the travaux préparatoires – the official record of the negotiation and drafting of the Convention – may shed light) and reasoned decisions of courts in other state parties may assist.

What is ‘the operation of embarkation’?

The phrase ‘the operations of embarkation’ has been interpreted as including a broad range of circumstances.

In 1973, passengers waiting in the transit lounge at Athens airport were subjected to a terrorist attack in which grenades exploded, guns were fired and people were held as hostages. Many passengers were injured and some sustained fatal injuries. Mr Day, who had started to walk to the plane when the attack occurred, was one of those wounded.  In Day v Trans World Airlines Inc[9]the New York US District Court considered the issue of whether the injuries were sustained in the course of embarkation for the purposes of the Warsaw Convention. The Court compared disembarkation (where, once a passenger has left the aircraft, there are few activities, if any, which the air carrier requires him to perform as a condition of completing his journey) with embarkation. The Court took into account that passengers may not board the aircraft unless they carry out a number of essential steps, including checking in; obtaining baggage checks; passing passport control; using a transfer bus; walking from the bus onto the aircraft. None of those pursuits was for the personal convenience of the passenger, nor did they ‘constitute frolic and detour’. Noting that ‘operation’ is defined as ‘a course or series of acts to effect a certain purpose’ and ‘embarking’ is ‘to go aboard a vessel or boat’, the Court concluded that all of those essential steps must be ‘in the course of any of the operations of embarking’. Summary judgment was entered for the plaintiff on the basis that the accident did occur in the course of embarkation. The matter was appealed.

The Court of Appeals[10]  upheld held the decision of the court below. It endorsed what it identified as a tripartite test of ‘embarkation’, namely:

(i) activity (what was the passenger doing at the time of injury?);

(ii) control (at whose direction?);

(iii) location.

It agreed that article 17 does not define ‘embarkation’ by reference to time (a set period before entering the aircraft) or location. With regard to the tripartite test: Mr Day’s activity was walking to the aircraft, having queued for a weapons search which was a prerequisite to boarding (i.e. under the airline’s control) in a location reserved exclusively for those about to depart on the flight. He was therefore in the course of embarking.

The finding that a passenger walking from the departure gate to the aircraft was in the course of embarking is not controversial. However, it is illuminating to examine the rational employed by the Court of Appeals in this case. It states in its judgment that a relatively broad construction of article 17 would protect the plaintiffs whilst also being ‘in harmony with modern theories of accident cost allocation’: namely, rather than the individual passengers having to bear the ‘crushing burden’ of their injuries, the airline could absorb the cost by ‘distribut[ing it] among all passengers’ (i.e. by way of higher future ticket prices). Further, it observed that the airline would be better able to request, or pay for, enhanced airport security measures against terrorist attacks; would be better placed to investigate the conditions at the airports they regularly serve and carry out risk assessments; and that if article 17 were not applicable the passengers would only be able to recover compensation by maintaining  a costly suit against the foreign airport operator. These factors are consistent with the aims of the Warsaw (now Montreal) Convention, but caution must be exercised to ensure that the aim of protecting passengers is not achieved by going beyond what was clearly intended.

The Court of Appeals considered the minutes of the committees appointed to draft the Warsaw Convention and noted that in the course of the drafting, one proposal was that the convention liability should extend from the moment the traveller enters the airport of departure until the moment they leave the airport of arrival, and another was that liability should not attach until passengers were inside the aircraft. Neither extreme was adopted and it was observed that it would be virtually impossible to draft a precise formula that would cover the myriad of cases that could arise. It was agreed that the article should be drafted in terms that would allow the courts to take into account the facts of each case.

The meaning of ‘the operation of embarking’ was considered further in Phillips v Air New Zealand[11] (a 2002 High Court case). The claimant was being escorted in a wheelchair pushed by an employee of the air terminal services company. He took her from the check-in desks, through security and passport control then left her near a public lounge. He later returned in order to take her to the departure gates: he pushed the chair onto an escalator, the chair fell backwards and the claimant was injured. The defendant argued that the Montreal Convention applied and the claim was time-barred, having not been issued within the 2 year limitation period imposed by the Convention. The Court found that the Convention did apply (as carriage begins as soon as the passenger presents a ticket for travel and the boarding pass is issued i.e. as soon as the check-in procedure is complete) and the claim was therefore time-barred. Nonetheless, having been asked to decide the issue of whether the accident occurred in the course of embarkation the Court went on to hold that it did.

The judgment notes that the plural ‘operations’ suggests article 17 is not confined to the process of actually climbing the steps to the aircraft and crossing the threshold, and that the three criteria identified in Day are relevant but do not of themselves answer the question. Morrison J noted that in the Irish case of Galvin v AER Rianta & AER Charter[12] the Court held that when considering whether an accident was in the course of embarkation, it must be established that (i) the accident is related to a specific flight and (ii) it happened while the passenger was actually entering or about to enter the aircraft or happened at a location where the passenger was obliged to be in the process of embarkation. He found that embarkation includes the elements required by the airline of its passengers: checking in; passing through security and passport control and the departure routine (going to the gate to be cleared for embarkation, then proceeding to embark) but the process of embarkation does not have to be a continuous one. This notion – that as a passenger proceeds through an airport he may be in the course of embarking at some times and not at others – addresses the realities of modern air  travel (at the time the Convention was agreed passengers would arrive at the airport and go straight on board; modern travel now entails additional waiting time and activities such as shopping, eating and drinking, which are not operations of embarking) but is at odds with what the District Court had in mind in Day when finding that the acts essential to travel on the flight (such as checking in) were part of embarking: that court referred to those operations being performed in an uninterrupted time sequence.

Having non-continuous operations of embarkation can lead to odd results. Applying Phillips, an airline would have presumed liability for an accident that occurs at passport control, even if that is an area entirely outside of its control, and would be liable in respect of a terrorist attack that occurs whilst a passenger is going through security but would not be liable if the attack occurred 1 minute later whilst the same passenger was perusing the duty free offerings. It might be argued that just because a step is essential in order to embark, it is not necessarily embarkation itself.

In Howells v British Airways Plc[13], a country court decision, the claimant was injured when she tripped over a set of luggage scales near the check-in area of an airport. The defendant denied that the injury was sustained in the course of embarkation. The Court held that the injury was not caused by an ‘accident’ (because the cause did not meet the established test of being an unexpected or unusual event or happening) and therefore the claim was dismissed. The judgment further said obiter that in any event the injury was not sustained in the course of embarkation: the security check area that the claimant was approaching at the time of the accident was not related to a specific flight (the Galvin criteria). It was a security clearance that all passengers had to go through to get to the departures area. There is clearly still uncertainty about the extent of embarkation.

Disembarkation

The Courts have addressed the issue of disembarkation more consistently:

• In MacDonald v Air Canada[14] the US Court of Appealsheld that disembarkation was terminated by the time the passenger had descended from the aircraft and reached a safe point inside the terminal (here, the injury was sustained whilst the passenger was waiting near the carousel in the baggage hall: the finding was that they were no longer in the course of disembarking);

• In Adatia v Air Canada[15] the claimant got off the plane and was injured on a travelator on her way to immigration control. The Court considered the tripartite test from Day and the location test from MacDonald: either way, it held, disembarkation was complete.

Conclusion

The exact parameters of ‘the operations of embarking and disembarking’ are yet to be defined. Given the intentions of the Warsaw Convention drafting committee that article 17 should allow the courts to take into account the facts of each case, it seems unlikely that any court will be able to provide a definitive answer. Practitioners should therefore be careful to ensure they are familiar with both domestic and international case law on the subject and be alive to the fact that judicial decisions may not be consistent in their approach.

[1] The Convention for the Unification of Certain Rules for International Carriage by Air

[2] SI 2002/263

[3] Article1

[4] This was defined by Air Navigation Order 2005, SI 2005/1970, art 155(1) as an undertaking whose business includes the undertaking of flights for the purpose of the public transport of passengers or cargo. That order was repealed by the Air Navigation Order 2009 (SI 2009/3015, later itself repealed) which did not include that definition.

[5]SI 2004/1899

[6] El Al Isreal Airlines Ltd v Tseng 525 US 155 (1999)

[7] [2023] CSIH 8 PD159/19 (Scottish Court of Session):

[8] 482 f Supp 497 (District Court, 1979)

[9] 393 F. Supp. 217 (SDNY March 1975)

[10] 528 F.2d 31 (2^nd Cir, 1975, US Court of Appeals)

[11] [2002] EWHC 800 (Comm)

[12] 18 March 1993

[13] [2017] 2 Lloyd’s Rep 322

[14] 439 F2d 1402 (1^st Cir, 1971 US Court of Appeals)

[15] [1992] 5 WLUK 253, C/A