INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW Convention because the baggage claim was no longer part of the disembarkation process and the presence there therefore did not fall within the liability period of the Warsaw Convention. Barclay v. British Airways16 was based on the findings that the plaintiff had slipped and fallen on a plastic strip covering the seat rails in the aisle between the rows of seats, during a flight from Phoenix, Arizona to London Heathrow and had been injured as a result. On the one hand, it would undoubtedly qualify as an accident if a flight attendant lost his balance and therefore spilled hot coffee on a passenger, just as it would undoubtedly not qualify as an accident if a passenger suffered a heart attack. If a passenger slips on the plane, he also loses his balance, but this does not say anything about whether the cause was due to the condition of the plane or the passenger’s own physical condition. Since the plastic rail involved complied with all regulations, was in proper condition and was not unusual, there was no accident within the meaning of the Montreal Convention, because such an accident required an external cause. Slipping after contact with a plastic strip was not sufficient for this. To qualify any fall due to contact with an existing, properly installed and functioning piece of aircraft equipment as an ‘accident’ would violate the balance of interests intended by the Montreal Convention. In 2010, the Austrian Supreme Court dealt with a staircase fall of an airline passenger:17 According to the findings of the court of first instance, the plaintiff, as a preferred passenger, had left the aircraft before all other passengers via a fold- -out staircase, which had a handrail on the right and left. However, the plaintiff could not use this handrail because she was holding a piece of luggage in each hand. She was wearing high-heeled shoes with a heel height of 8 to 10 cm. When she reached the second step, she fell forward and hit her head on the runway of the tarmac. The exact reason for the fall could not be determined. At the time of the fall, there was no passenger directly behind her; after the fall, one of the plaintiff’s shoes remained on the stairs. The Supreme Court upheld the decisions of the lower courts, which had denied the existence of an accident, and dismissed the plaintiff’s appeal for lack of a substantial question of law. The ruling of the German Federal Court of 21.11.2017 as quoted above18 dealt with the fall of a passenger due to a wet spot caused by condensation in the 16 Court of Appeal for England and Wales (Civil Divison) 18.12.2008, Barclay v. British Airways, [2008] EWCA Civ 1419. 17 OGH decision of 01.06.2010, 1 Ob 11/10i. 18 BGH judgement of 21.11.2017, X ZR 30/15.
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