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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOEL W. ADELSON, M.D.,

Plaintiff,

 v.

AMERICAN AIRLINES, INC., and

BRITISH AIRWAYS, PLC,

Defendants. /

No. C 17-00548 WHA

ORDER GRANTING MOTION

FOR JUDGMENT ON THE

PLEADINGS

INTRODUCTION

In this personal injury action under Article 17 of the Montreal Convention, defendants

move for judgment on the pleadings pursuant to Rule 12(c). For the reasons herein, defendants’

motion is GRANTED. Plaintiff may file a motion seeking leave to amend.

STATEMENT

The following facts are taken from the complaint. In December 2015, plaintiff Joel

Adelson, M.D., purchased air transportation from San Francisco to Delhi, India, through “One

World Partner Airlines” and with American Airlines Advantage Award miles. In January 2016,

Adelson returned to San Francisco via three international flights. First, from Delhi to Helsinki;

second, from Helsinki to London; and third, from London to New York — returning to

California by other arrangements. Adelson flew on defendant British Airways, PLC’s flights

for the second and third legs of his return journey (Compl. at 2).
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Upon arrival in London at “Gate 3” of Heathrow Airport, Adelson made his way, within

the secured area of Heathrow, to “Terminal 5” via “inter-terminal transportation.” As he

attempted to pass into the building of Terminal 5, Adelson was “suddenly and violently” struck

by a large metal door closing on him without warning. The impact inhibited the use of his right

arm and caused a later-diagnosed rotator cuff tendon tear, amongst other “serious and probable

injury to some extent to the muscles, tendons, and other components” and “shock and other

injuries.” Additionally, Adelson incurred “extreme pain, disability, interruption and

interference with normal activities, including those required in the exercise of his profession” as

a medical doctor and lecturer associated with the University of California, Irvine (id. at 2–3).

Based on these allegations, Adelson made a single claim against defendants American

Airlines, Inc., and British Airways, PLC, under Article 17 of the Montreal Convention, which is

formally known as the Unification of Certain Rules for International Carriage by Air, Done at

Montreal, May 28, 1999, S. Treaty Doc. No. 106-45, 1999 WL 33292734. Both defendants

have answered Adelson’s amended complaint (Dkt. Nos. 5, 7, 14).

Defendants now move for judgment on the pleadings pursuant to Rule 12(c), arguing

Adelson failed to state a claim compensable under Article 17 of the Montreal Convention. This

order follows full briefing and oral argument.

ANALYSIS

Our court of appeals has held:

Judgment on the pleadings is properly granted when, accepting all

factual allegations in the complaint as true, there is no issue of

material fact in dispute, and the moving party is entitled to

judgment as a matter of law. Analysis under Rule 12(c) is

substantially identical to analysis under Rule 12(b)(6) because,

under both rules, a court must determine whether the facts alleged

in the complaint, taken as true, entitle the plaintiff to a legal

remedy. 

Chavez v. United States, 683 F.3d 1102, 1108–09 (9th Cir. 2012). To be entitled to a legal

remedy under Article 17, Adelson must allege facts that show an (1) accident (2) that caused

him to suffer bodily injury (3) took place on board the aircraft or in the course of any of the

operations of embarking or disembarking. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530,

535–36 (1991). 
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 The Warsaw Convention is formally known as the Convention for the Unification of Certain Rules

Relating to International Travel by Air, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 (1934), reprinted in note

following 49 U.S.C. § 10105.

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Defendants raise two issues with Adelson’s pleading. First, defendants argue Adelson

fails to proffer sufficient facts to satisfy the third element as to both American Airlines and

British Airways — namely, that the accident did not occur in the course of any of the operations

of embarking or disembarking, or on board an aircraft. Second, defendants argue that no claim

can be made against American Airlines because American Airlines was not Adelson’s

contracting or actual carrier as understood under the Montreal Convention.

1. THE MONTREAL CONVENTION.

Both sides agree that the Montreal Convention applies here. Its predecessor, the

Warsaw Convention, dates back to 1929.1 At that time, “[m]any international air carriers . . .

endeavored to require passengers, as a condition of air travel, to relieve or reduce the carrier’s

liability in case of injury.” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169

(1999). The Warsaw Convention addressed that practice by creating a comprehensive liability

scheme premised on a compromise between international air carriers and their global customers. 

That compromise prohibited the use of liability waivers by the former while limiting recovery

by the latter. Ibid.

Seventy years later, the Montreal Convention updated this scheme. The preamble to the

Montreal Convention recognized both “the need to modernize and consolidate the Warsaw

Convention and related instruments” and “the importance of ensuring protection of the interests

of consumers in international carriage by air and the need for equitable compensation based on

the principle of restitution.” Like the Warsaw Convention, the Montreal Convention sought to

accomplish “uniformity of rules governing claims arising from international air transportation.”

Ibid.

The Montreal Convention supersedes the Warsaw Convention entirely. See Montreal

Convention, Art. 55. This is important because there are some notable differences between the

two treaties. For example:
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Whereas the primary aim of the contracting parties to the

[Warsaw] Convention was to limit the liability of air carriers . . .

the contracting parties to the Montreal Convention expressly

approved that treaty because, among other reasons, they

recognized “the importance of ensuring protection of the interests

of consumers in international carriage by air and the need for

equitable compensation based on the principle of restitution.” [ ] 

Hence, commentators have described the Montreal Convention as

a treaty that favors passengers rather than airlines.

Ehrlich v. American Airlines, 360 F.3d 366, 371 n.4 (2nd Cir. 2004) (quoting the preamble to the

Montreal Convention). The legal standard regarding damages also changed. Under Article 21 of

the Montreal Convention, the carrier is strictly liable up to 100,000 special drawing rights

(approximately $135,000). To the extent such damages exceed 100,000 SDR, the carrier is not

liable so long as it can prove that the damage was not due to its own negligence. Montreal

Convention Art. 21; see Kruger v. United Air Lines, Inc., 481 F. Supp. 2d 1005, 1008 (N.D. Cal.

Mar. 1, 2007) (Judge Marilyn Patel).

Nevertheless, most provisions of the Montreal and Warsaw Conventions are substantially

the same, and, as a result, certain legal precedents developed under the Warsaw Convention have

continuing application to the Montreal Convention. See Narayanan v. British Airways, 747

F.3d 1125, 1127 n.2 (9th Cir. 2014).

2. SCOPE OF LIABILITY UNDER ARTICLE 17.

Article 17 of the Montreal Convention provides:

The carrier shall be liable for damage sustained in the event of

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.

This dispute primarily concerns the meaning of “in the course of any of the operations of

embarking or disembarking” in Article 17. If an air carrier succeeds in placing the occurrence of

an alleged injury outside of the operations of embarking or after the operations of disembarking,

they cannot be held liable under Article 17. Defendants argue that Adelson is outside this scope,

asserting that our court of appeals has repeatedly held that Article 17 does not permit a passenger

to recover for injuries occurring during transit through airport facilities, citing Maugnie v.

Compagnie Nationale Air France, 549 F.2d 1256, 1261–62 (9th Cir. 1977); Schmidkunz v.
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 The strict interpretation that this “more flexible interpretation” is relative to interprets the embarking

operations “as essentially the physical activity of entering an airplane.” Maugnie, 549 F.2d at 1259. 

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Scandinavian Airlines System, 628 F.2d 1205, 1207–08 (9th Cir. 1980); and Lathigra v. British

Airways PLC, 41 F.3d 535, 540 n.6 (9th Cir. 1994). These decisions do not support defendants’

proposition but they are controlling.

“Whether a passenger is embarking or disembarking is a question of federal law decided

on the facts of each case.” Schmidkunz, 628 F.2d at 1207. Maugnie, the controlling decision for

both Schmidkunz and Lathigra, expressly rejected creating an inflexible rule like the one

defendants proffer. Our court of appeals instead “requires an assessment of the total

circumstances surrounding a passenger’s injuries, viewed against the background of the intended

meaning of Article 17.” Maugnie, 549 F.2d at 1262. Maugnie did not state the intended meaning

of Article 17 but it did settle on a “more flexible interpretation of the language in Article 17” after

explaining the flexible approaches employed in Day v. Trans World Airlines, Inc., 528 F.2d 31,

38 (2nd Cir. 1975), and Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3rd Cir.

1977). Maugnie, 549 F.2d at 1260–62.2

To adequately apply the fact-based approach adopted by Maugnie, it is necessary to

explore the reasoning of both Day and Evangelinos. Both decisions confronted the same

historical event — in the transit lounge of an airport in Greece, two terrorists subjected a line of

passengers to a vicious act of terror as they prepared to board a flight to New York, leaving three

dead and more than forty others injured. Both decisions, interpreting Article 17’s “operations of

embarking or disembarking” language, rejected an approach that looked primarily at the location

of the passenger. Instead, the decisions settled on an approach they felt better comported with the

plain meaning of Article 17 and the Convention’s relevant history, by looking primarily to (1) the

activity the passenger was engaged in, (2) the passenger’s location, and (3) the control of the

airline over the passenger, all at the time of the accident. 

The official version of the text, written in French, reads “au cours de toutes operations

d’embarquement et de debarquement.” To illicit the plain meaning, Day examined the French

dictionaries of its time and settled on the following definition for the French word “operation”: 
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“[A] group of procedures combined to achieve a result.” Day, 528 F.3d at 33 n.7. The plain

meaning of Article 17 thus placed the lined-up passengers unquestionably in the process of

embarking and under the control of the airline as its agents directed and oversaw their security

check. During this necessary process, “[t]he passengers were not free agents roaming at will

through the terminal.” Id. at 33–34.

The debates of the delegates considering the Warsaw Convention also guided Day and

Evangelinos. The Comite Internationale Technique d’Experts Juridique Aeriens provided a

preliminary draft of the Convention that imposed liability on carriers “from the moment when the

travelers . . . enter[ed] the aerodrome of departure, up to the moment when they le[ft] the

aerodrome of destination.” Evangelinos, 550 F.2d at 157. The delegates expressly rejected this

aerodrome-to-aerodrome approach, opting instead for the current version. The defendants argued

that the delegates’ rejection compelled a strict reading of Article 17. Evangelinos found,

however, that “[t]he most that can be said is that the draftsmen rejected the concept of automatic

liability . . . for all accidents within the limits of the departing or arrival aerodromes.” Id. at 158. 

Further, “[t]he debates indicate[d] that the principal fear was that carriers would be liable for

injuries sustained by passengers at times when the airline had no control over what the passengers

were doing.” Id. at 158 n.13. 

With this reasoning in mind, our court of appeals assessed the circumstances in

Maugnie, 549 F.2d at 1262. There, the passenger had deplaned and proceeded toward a different

airline’s gate to make her connecting flight when she slipped and fell in a common passenger

corridor “neither owned nor leased by Air France,” the airline of the flight she arrived on. 

Finding she was acting at her own direction and was no longer under the control of Air France,

Maugnie held that unlike the passengers in Day and Evangelinos, their plaintiff had completed the

disembarkation operations contemplated by Article 17. Id. at 1262.

The plaintiff in Schmidkunz, 628 F.2d at 1207, similarly slipped and fell approximately

500 yards from the boarding gate in a common passenger area of the terminal after deplaning and

while waiting for her next flight on a different airline. She had not received her boarding pass,
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was not imminently preparing to board the plane, and the defendant’s personnel exercised no

control over her. On these facts, reliance on Article 17 was ruled out.

Finally, in Lathigra, 41 F.3d at 536–37, a British Airways passenger sued the airline for

negligence after being stranded in Nairobi for five days because her connecting flight had been

discontinued. “Days” before the flight, the plaintiff called British Airways and confirmed her

reservations but was not informed of the discontinuance. British Airways attempted to apply the

Warsaw Convention and its statute of limitations, which had expired for the plaintiff, but Lathigra

held the action was outside the scope of Article 17’s statute of limitations, as it “applie[d] only to

actions . . . related to the performance of the international transportation.” Id. at 538. The

decision did not analyze Maugnie or Schmidkunz but it briefly noted that its holding should be

interpreted consistently with those decisions. Id. at 539 n.6. Explaining that Maugnie and

Schmidkunz declined to apply the Convention’s liability limits to actions for injuries occurring

inside airport terminals, Lathigra stated:

Thus, these cases involve additional restrictions on the

Convention’s reach beyond those inherent in our approach here,

requiring “an assessment of the total circumstances surrounding a

passenger’s injuries.” Maugnie, 549 F.2d at 1262. Both Maugnie

and Schmidkunz involved passengers who slipped and fell in

terminal common areas while making connections between carriers

at foreign airports.

Ibid. (emphasis in original). Defendants argue that Lathigra reiterates supposed precedent from

our court of appeals that “excludes recovery against a carrier for passengers’ injuries that occur

during transit through common areas of airports from the scope of carrier liability under Article

17” (Dkt. No. 18 at 9–10). Not so. To the contrary, Lathigra recognized that an assessment of

the total circumstances must be performed, citing Maugnie. 

Maugnie, Schmidkunz, and Lathigra clearly do not support what defendants insist is “well

settled law [in our court of appeals] . . . that Article 17 does not apply to ‘accidents’ that occur

while a passenger is merely transiting between two flights on airport premises” (Dkt. No. 18 at

12). The total circumstances, rather, surrounding the passenger’s injury must be assessed to

determine whether they were in the course of any of the operations of embarking or

disembarking. Applying this standard, and primarily using the three factors from Day and
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Evangelinos, this order nevertheless holds that Adelson’s complaint is insufficient to state a

claim. 

As to his location, Adelson’s allegations do not reveal his location relative to his

connecting flight, despite alleging it was also with British Airways and that he traveled within the

secured area of Heathrow. As to the nature of his activities, Adelson’s complaint says little about

the activities he was engaged in as they related to the operations of embarking or disembarking. 

He allegedly was traveling on inter-terminal transportation between Gate 3 and Terminal 5 but he

did not include any factual allegations related to his intentions upon entering the terminal. He

could have been headed directly to the gate of his connecting flight or headed to a restaurant for a

meal or to pursue a different detour.

As to the airline’s control over Adelson at the time of the accident, he alleged that the

defendants, “as common carriers, had and exercised control over Plaintiff’s progress, transfer, and

movement into the Terminal 5 building and any manner of ingress thereto, including doors and

entrances, and/or were responsible for a safe and secure place to exit the inter-terminal

transportation and enter Terminal 5” (Compl. at 3). These are mere conclusory statements

lacking factual support and thus fail to satisfy the plausibility standard in Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). There must be allegations explaining how defendants controlled Adelson

and what made them responsible for errant doors at Heathrow. To be sure, the Court is concerned

that defendants are insisting upon evidentiary facts beyond the reach of plaintiff at this stage, but

the Court believes more can be pled on information and belief as to the control issue if counsel

were to make use of the internet in their investigation of Heathrow Airport. 

Adelson fails to establish under these three factors, or any other circumstances, that he

was engaged in the operations of embarking or disembarking as understood by our court of

appeals in interpreting Article 17. To find otherwise would go beyond the intended meaning of

Article 17, establishing liability merely because Adelson was injured in an airport while carrying

an international flight ticket. Defendants’ motion is GRANTED.

Adelson may, however, file a motion seeking leave to amend his complaint. Contrary to

defendants’ arguments, Adelson’s opposition includes what begins to reveal a plausible theory of
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relief. There, Adelson says he held his boarding ticket, traveled directly to Terminal 5 to make

his connecting flight, and that he did not pursue excursions into public areas or to the main

terminal for shopping or other activities (Dkt. No. 27 at 4). He further says British Airways

controlled his every move because Terminal 5 is a main British Airways global base, most of its

flights go through Terminal 5, and few other carriers use the terminal. It is still unknown who

manages or controls the terminal but more detailed allegations are possible. He also says British

Airways controls which airplanes go to which gate and how a passenger may get from one gate to

another. Finally, he states that “departing from the bus, walking to the door in question, and

passing through the door and on to the designated gate are each and all inherent and indispensable

‘operations of embarking or disembarking’” (Dkt. No. 27 at 5). This proposition may be legally

supportable if Adelson can show that these were conditions imposed by the airline for embarking

on his next flight, rather than conditions imposed by the airport or the country, as may be the case

for security or baggage procedures. Bearing in mind the standard set by our court of appeals for

an Article 17 claim, Adelson may file a motion seeking leave to amend his complaint.

3. CONTRACTING CARRIER UNDER THE MONTREAL CONVENTION.

Defendants additionally argue Adelson failed to state a claim against American Airlines

because the complaint did not allege American Airlines was a carrier as required under the

Montreal Convention. Adelson, in his opposition, disagrees that American Airlines was not an

actual carrier but focuses primarily on his new theory that American Airlines was at least a

contracting carrier. The theory in his opposition is that American Airlines was able to issue him

the tickets for the British Airways flights and another airline through the “One World” airline

alliance. 

In his complaint, however, Adelson merely alleged:

In connection with his work, on or about December 16, 2015, he

purchased air transportation from San Francisco to Delhi, India for

a medical conference. This ticket, consisting of several flight legs

with One World Partner Airlines were [sic] purchased with

American Airlines Advantage Award miles, and were identified on

American Airlines record locator under ID “MOHZSR, which

includes his outgoing travel.” On the return, January 15, 2016, he

was ticketed Finnair flight 22 from Delhi to Helsinki (HEL);

British Air 799 from Helsinki to London Heathrow (LHR), and

British Airways 183 from LHR to JFK, New York, United States.
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Thus, American Airlines would be connected to this action only by reason of the air miles

Adelson used. Adelson does not allege any contract between American Airlines and himself was

formed. On this theory, Adelson could sue Visa or Mastercard or any number of cash

alternatives. That cannot be what the Montreal Convention contemplated. As such, defendants’

motion is GRANTED on this claim as well. 

Defendants also believe Adelson cannot cure his claim if he were given leave to amend. 

Defendants rely on Article 39 of the Montreal Convention to define actual carrier and contracting

carrier. Article 39 reads:

The provisions of this Chapter apply when a person (hereinafter

referred to as “the contracting carrier”) as a principal makes a

contract of carriage governed by this Convention with a passenger

or consignor or with a person acting on behalf of the passenger or

consignor, and another person (hereinafter referred to as “the

actual contractor”) performs, by virtue of authority from the

contracting carrier, the whole or part of the carriage, but is not with

respect to such part a successive carrier within the meaning of this

Convention. Such authority shall be presumed in the absence of

proof to the contrary.

It is not clear why Article 39 applies and defendants’ authorities are of little use. Defendants cite

to several non-binding decisions and one decision from our court of appeals that is unrelated to

the issue, Chubb Insurance Company of Europe, S.A. v. Menlo Worldwide Forwarding, Inc., 634

F.3d 1023, 1027 (9th Cir. 2011). Chubb is relegated to the end of a string cite that follows the

reprinted text of Article 39. Parenthetically, defendants quote a portion of Chubbs stating Article

45 allows an action for damages to be brought against an actual carrier, a contracting carrier, or

against both together or separately (Dkt. No. 18 at 13). This decision does not explain why

American Airlines cannot be a carrier under any allegation brought by Adelson. Defendants also

rely on the article-by-article analysis of the Montreal Convention, reprinted in S. Treaty Doc. No.

106-45, 1999 WL 33292734 (2000). The analysis provides examples of contracting carrier/actual

carrier operations, “includ[ing] code-share operations and operations where one carrier offers

service using an aircraft and crew leased from another carrier.” Ibid. There is no authority

provided to support finding this list exhaustive or persuasive. Well-pled allegations describing a

contractual relationship connected to American Airlines and One World may yet survive. As

such, Adelson may seek leave to amend on this claim as well. 
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CONCLUSION

For the foregoing reasons, defendants’ motion for judgment on the pleadings is GRANTED.

By JUNE 1 AT NOON, Adelson may seek leave to amend the dismissed claims by a formal

motion noticed on the normal 35-day calendar. Adelson must plead his best case. His motion

should affirmatively demonstrate how the proposed first amended complaint corrects the

deficiencies identified in this order, as well as any others raised in defendants’ motion but not

addressed herein. The motion should be accompanied by a redlined copy. Failure to timely file a

motion seeking leave to amend will result in judgment in favor of defendants American Airlines,

Inc., and British Airways, PLC.

IT IS SO ORDERED.

Dated: May 24, 2017. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE