By: Aisha Lala, James Cooper and Merinda Stewart
At a glance
- Last month, the Federal Court of Australia (FCA) handed down a judgment1 examining the liability of Qatar Airways, among others, for the invasive examinations of several Australian passengers at Doha Airport in October 2020, following the discovery of a newborn baby abandoned in the airport terminal. The other respondents were the Qatar Civil Aviation Authority (QCAA) and the operator of the airport, MATAR, a wholly owned subsidiary of Qatar Airways.
- The judgment provides important clarification on the interpretation in Australia of key aspects of international civil aviation law, including the meaning of ‘embarkation’ and ‘disembarkation’ under Article 17(1) of the Montreal Convention 19992, and the scope of the exclusivity principle.
Background
The passengers alleged that they were taken off the aircraft shortly prior to departure and subjected to an invasive examination in an ambulance on the tarmac to try to determine who had given birth to the baby. The passengers described being led off the aircraft by ‘armed and unarmed persons in dark uniforms’ and that the examinations were undertaken by a separate person, who appeared to be a nurse. They did not allege that employees or agents of Qatar Airways removed them from the aircraft or played a role once they were off the aircraft.
The invasive examinations were alleged to be an ‘accident’ giving rise to bodily injury, triggering Qatar Airways’ liability under Article 17(1) of the Montreal Convention.
Qatar Airways, in turn, applied for summary judgment to dismiss the claims against it on the grounds that the invasive examinations did not take place during ‘embarkation or disembarkation’, and therefore no liability resulted under Article 17(1).
Embarking or disembarking
The FCA adopted a ‘three-pronged enquiry’3 to determine whether an accident had taken place in the course of embarking or disembarking. That approach involves considering the passenger’s activity, their location relative to the aircraft, and the extent to which the carrier was exercising control, where those factors are ‘inextricably intertwined’.
In applying that approach, the FCA ultimately held that the passengers did not have reasonable prospects of establishing that the invasive examinations took place in ‘the course of any of the operations of embarking or disembarking the aircraft’. The following factors were important:
- the ambulance in which the examinations was conducted was not physically connected to the aircraft
- it could not reasonably be argued that an invasive examination to seek to determine if the examinee had just given birth is part of the process of embarkation or disembarkation. This was despite the fact that the passengers were not permitted to reboard the aircraft unless the examinations were performed, and
- no evidence was given by the passengers to support their submission that Qatar Airways was in a position to control the conduct of MATAR, the nurse conducting the examinations, and/or the conduct of the police officers in removing the passengers from the aircraft.
It followed that the passengers had no valid claim against Qatar Airways under Article 17(1).
The exclusivity principle
The passengers submitted that the exclusivity principle under Article 29 of the Montreal Convention should be narrowly interpreted, meaning that a passenger could bring an action against a carrier under domestic law (for example, in negligence) concerning an act or omission outside the scope of Article 17(1), for damage sustained in the course of international carriage by air.
The FCA disagreed. It endorsed the view held elsewhere that the text of Article 29 is broad – it refers to ‘any action for damages, however founded’ and states that it applies to an action for damages ‘whether under this Convention’ or ‘in contract or in tort’ or ‘otherwise’. That broad interpretation is consistent with the primary object and purpose of the Montreal Convention to achieve uniformity in the law relating to the liability of air carriers, excluding resort to domestic law.
For those reasons, the passengers could not maintain negligence claims against Qatar Airways and the claims were therefore dismissed.
Observations
This is a welcome judgment for carriers and aviation insurers, further consolidating in Australia two key elements of carrier liability.
The general rule of interpretation of a treaty is that its terms are read in accordance with their ordinary meaning in light of their object and purpose. The FCA’s decision on the scope of ‘embarkation and disembarkation’ and the exclusivity principle under the Montreal Convention is clearly consistent with this foundational principle.
As the FCA stated, the Montreal Convention is ‘a balance between the interests of a carrier and the rights of passengers’. Article 17(1) imposes strict liability on the carrier and, under most circumstances, the liability is limited. The Montreal Convention provides uniformity in the rules relating to international carriage by air, through the terms of the treaty to the exclusion of domestic laws. The uniformity is in the interests of both carriers and passengers, notwithstanding that the treaty is a balance of the interests on each side.
The facts before the FCA were unusual in that the ‘accident’ was clearly not in the process of what would ordinarily be considered part of embarkation or disembarkation. This was critical in the FCA’s finding that the accident was not within the scope of Article 17(1). Regarding disembarkation, the FCA contrasted ‘the means by which a passenger was conveyed from an aircraft to an airport terminal’, which it could readily classify as disembarkation, and the ‘accident’ considered in the present case, which did not come within the specific locations and activities of Article 17 when understood in the context of its strict liability.
Likewise, a broad interpretation of Article 29 of the Montreal Convention is critical to maintaining the overarching aim of the drafters, that of unifying the rules for international carriage by air.
Related judgment
Another judgment was handed down concurrently in the same proceedings, dismissing the claims against the QCAA on the basis of foreign state immunity4. The FCA concluded that the QCAA is a separate entity of the State of Qatar and therefore entitled to immunity from Australian Courts.
Next steps
The passengers were granted leave to file a revised statement of claim, limited to claims against MATAR. That proceeding is ongoing and we will follow it closely.
[1] DHI22 v Qatar Airways Q.C.S.C (No 2) [2024] FCA 348.
[2] Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309, as incorporated into Australian law under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).
[3] This test was considered in various US decisions (e.g. McCarthy v North West Airlines (1 Cir, 1995); Schroeder v Lufthansa German Airlines, 875 F 2d 613 (7th Cir, 1989); and Tuturro v Continental Airlines, 128 F Supp 2d 170 (NY, 2001)), and accepted by the New South Wales Court of Appeal in Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.