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A New York couple alleging an airline employee assaulted them at the gate waited two years too long to file their claims against the carrier, the 11th U.S. Circuit Court of Appeals ruled on July 12. Marotte v. American Airlines Inc., No. 01-15566. Because the court held that the couple were embarking on their flight when the alleged attack occurred, their claim automatically fell under the Warsaw Convention, which the U.S. Supreme Court has ruled is the exclusive remedy for injuries suffered during air travel. The convention has a two-year statute of limitations, but the travelers, Richard and Olympia Marotte, waited more than four years to file their suit. Returning to New York from a Bahamas vacation, the couple arrived at a gate in the Miami International Airport for their connection when Olympia Marotte discovered she could not find their tickets. Her husband asked the attendant to allow them to board anyway because the computer showed the tickets were paid for and that, because of recent heart surgery and his diabetes, he was not feeling well. The attendant called over a supervisor who said the Marottes had to buy new tickets to board. Olympia Marotte then found the tickets, prompting the supervisor to accuse her of being “lazy” and “negligent” in her search, the court said. The supervisor ordered the jetway door closed, pushed Richard Marotte down, knelt on top of him and tore up the tickets, the court said. He had to be hospitalized. The airline disputes this version of events. Focusing on whether the Marottes were “embarking” under the convention, the 11th Circuit considered three factors: the passengers’ activity and whereabouts at the time of the incident and the amount of control the carrier had over them. The Marottes were through security, had their tickets out and were trying to board. The court noted the incident itself showed the airline had control over the Marottes, that it “physically prevented [Richard Marotte] from boarding his intended flight. It is difficult to imagine a situation that more clearly establishes control than the act of physical restraint.” To say passengers are embarking only after they have passed through the gate would “draw a bright-line at … the actual doorway to the jetway,” the court said. Treaties, it continued, should be broadly applied. Plaintiffs’ attorney Ronald Cohen of New York said the court drew its own bright line when it figured into its decision that the Marottes had passed through airport security. He also questioned how passengers could be found to be embarking on a flight when the airline repeatedly barred their entry. “Under that set of facts,” he asked, “can you reasonably say that a passenger is boarding?” But defense attorney Nancy H. Henry of Carlton Fields in Miami said that embarking passengers in Warsaw Convention cases never make it on board. They either fall while boarding or are barred from entering by the airline or another party. Calling the opinion a “good discussion of the law,” she said the court’s first-impression ruling puts it in line with other circuits on the convention. “There’s no minority opinion out there,” she said. “No split.”

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