29 Apr When Does Application of the Warsaw Convention End and State Tort Law Begin?
Last week a Florida state court rendered an interesting decision on the scope of application of the Warsaw Convention. The court recognized that state tort law is preempted by the Warsaw Convention, but the critical question in Bowe v. Worldwide Flight Services was at what point in exiting a plane does the application of the treaty end and state tort law begin.
The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux’s eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.
The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….
The preemptive effect of the Convention on local law extends no further than the Convention’s own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….
The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (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 being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'”
That three-part test poses difficult questions as to when the application of the treaty ends and state law begins. Depending on what the passenger is doing, where they are doing it, and whether they are “controlled” by the carrier, the Warsaw Convention applies. The key idea is that there is a point in every flight of every passenger that he or she ceases to “disembark” from flight. At that exact moment state tort law applies. But before that moment, the Warsaw Convention applies and preempts contrary state law. So where should that line be? At the airplane door, the terminal gate, the baggage carousel, or perhaps the airport parking lot?
Incidentally, the court in Bowe makes no mention of Medellin and whether the Warsaw Convention should still be interpreted as a self-executing treaty in light of Medellin. Supreme Court precedent indicates that the Warsaw Convention is self-executing, but the preemption analysis in the Supreme Court’s decision in El Al Israel v. Tseng offers a useful comparison to the self-executing analysis in Medellin. In El Al Israel, the Court ruled that a “home-centered preemption analysis … should not be applied, mechanically, in construing our international obligations” and that the “text, drafting history, and underlying purpose of the Convention” should be examined to determine whether a treaty preempts state law. The Court also looked extensively to the interpretations given to the treaty in the “opinions of sister signatories.” Medellin, by contrast, focused primarily on text and the interpretion of the United States, which it said is entitled to great weight. As we try to make sense of Medellin, it would be useful to analyze why the Court ruled that the Warsaw Convention is self-executing in El Al Israel, but that in Medellin it ruled that Article 94 of the U.N. Charter is not.
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