Montreal Convention inapplicable where injured passenger unable to prove that airline regarded multi-airline carriage as “single operation”

Kruger v. United Air Lines, Inc. (N.D. Cal. Nov. 1, 2007).  While waiting on a jetway to board a flight from San Francisco to Seattle, the passenger was inadvertently struck on the head by a backpack swung by another boarding passenger.  The passenger was able to board but became “dazed and nauseated” during the flight due to the incident.

The passenger’s complaint against United alleged that the Montreal Convention governed her claims and also that the airline was liable under various state common law tort causes of action, including negligence, negligent training and supervision of employees and negligent infliction of emotional distress.

United moved to dismiss the complaint on the grounds that the passenger’s state common law claims were preempted by the Montreal Convention.  In its motion, United expressed doubt that the Montreal Convention governed the case, as the incident appeared to have occurred in connection with a domestic flight, but United correctly stated that the court had to accept the passenger’s allegation that the Convention governed as true for purposes of the motion.  As previously reported, the court held that the Convention preempted the passenger’s state common law tort causes of action but that she had stated sufficient facts to plead a cause of action under Article 17 of the Convention by alleging “bodily injury” (the in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.

United then moved for summary judgment, arguing that the Montreal Convention did not apply because the jetway incident had occurred in connection with a domestic flight, not an international flight.  Prior to the flight at issue, the passenger had traveled on a United flight from Los Angeles to San Francisco and, before that, on a Qantas flight from Australia to Los Angeles.  Since more than one airline was involved in the transportation, for the flight at issue to constitute “international carriage” governed by the Montreal Convention, it had to be part of “one undivided carriage” under Article 1(3).  Under Article 1(3), a series of flights is considered “one undivided carriage” only “if it has been regarded by the parties as a single operation.”

The court held that the passenger had failed to produce sufficient objective evidence that United had regarded her flights “as a single operation.”  In support of its conclusion, the court noted that the United and Qantas tickets “were not issued by the same travel agent or made as part of a package,” that “they were reserved and paid for separately,” that “the two airlines did not have code sharing agreements and were not partners in the same worldwide alliance,” that “there were no communications between the airlines to coordinate the flights,” and that “the facts of one airline’s itinerary or ticketing was not reflected on the other airline’s itinerary or ticket.”  Accordingly, the court granted United’s motion for summary judgment.

Note:  The court’s summary judgment ruling did not end the case.  The court allowed the passenger to refile her state common law tort causes of actions against United – the very ones that the court had earlier held were preempted by the Montreal Convention – and she did so.

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