Mind The Gap! The meaning of embarking and disembarking an aircraft

by Nina Harrison and Alice Reilly, solicitors at Irwin Mitchell 

Travelling has not been easy over the past year.  However, with the hopeful easing of restrictions following the Covid-19 pandemic, more and more people are looking to travel abroad for various reasons, including long overdue and rearranged holidays.

The number of people travelling will continue to rise and, unfortunately, accidents will happen, whether that be in one’s own home, whilst on holiday, or, whilst travelling to and from a destination. This article seeks to provide some guidance on international travel by aircraft, in particular, when passengers enter and leave the care of the airline, or carrier.

The Convention

The rules surrounding injury when travelling by aircraft are governed by The Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention).

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:22001A0718(01):en:HTML

Considerable case law is also required to understand the extent of some of the rules within the Convention.

Embarking and disembarking

The Convention itself states at Article 17(1) that:

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.

Clearly the phrasing of this article has given rise to various interpretations, some broad in nature and others much more limited, which has led to significant litigation before the courts.

One would be forgiven for assuming that embarking or disembarking would mean physically entering or leaving the aircraft. However, it can be argued that the term should not be construed in such a narrow sense. What adds to the complexities of interpreting this section of the convention is the fact that each airport is different when it comes to checking in, the length of time to board the aircraft, whether a bus is used to transport passengers to the aircraft and so on. So, where is the cut off in which the passenger moves from simply being in the airport or on the aircraft to embarking or disembarking?

One argument which has remained rather fixed over the years is that embarking and disembarking begins and ends once the passenger has passed through passport control to board or leave the plane. At that point it can be argued that the passenger is under the control of the carrier and is no longer able to move freely throughout the airport. This approach is also supported by the fact that in almost every situation, despite airports being different in their layout, this process of having to go through some form of passport control remains fairly consistent.

If, as a passenger, you are given and following instructions for embarking the aircraft, this is also more likely to be considered as embarking within the meaning of the Convention; whilst also taking into account the location of the accident in connection to the flight. For example, if you have an accident whilst going to the boarding gate, this is more likely to fall within the meaning of embarking than an accident which occurs whilst perusing the airport’s shops or using the airport’s facilities.  

It is important to note that there is various case law which considers arguments surrounding the meaning of embarkation and disembarkation and there are also successful cases which do not follow the above interpretation of having passed through passport control.

Conclusion

Although this term can often be over-used, trying to determine whether an accident falls within the meaning of embarking or disembarking until the Convention is very case specific.

It is always best to seek expert advice when considering whether to make a claim under the Montreal Convention, in particular because there are strict time limits involved.

In order to protect oneself as much as possible it is always worth taking out comprehensive travel insurance and checking if there are any exclusion clauses which exclude claims against a carrier.

Find out more about Irwin Mitchell's expertise in helping people following travel accidents at our dedicated holiday accidents section.

"...where is the cut off in which the passenger moves from simply being in the airport or on the aircraft to embarking or disembarking?"”