A “RISK CHARACTERISTIC TO AIR TRAVEL” AND ARTICLE 17 OF THE MONTREAL CONVENTION 1999: IS THE TALMUDIC DEBATE RESOLVED BY THE CJEU?

When a judgment begins with references to the importance of protecting the interests of air passengers, it is a foregone conclusion that it will not go the way of the air carrier. The case of GN v ZU, Case C-532/1819 December 2019 proved to be no different.

The case was referred to the Court of Justice of the European Union (CJEU) by the Austrian Supreme Court which was faced with the following set of facts: a minor who was travelling with her father from Mallorca to Vienna suffered second-degree scalding when a cup of coffee that was placed upon the tray table of her father tipped over either due to a defect of the table or a turbulence. There was no doubt that the injury was caused by an unusual and unexpected event that was external to the minor, satisfying the widely used definition of the term accident in Art 17 of the Montreal Convention 1999 (MC) as was construed in the American case of Air France v Saks 470 U.S. 392 (1985).

In doubt was whether the term accident is “limited to cases where a hazard typically associated with aviation materialize[s]”. If there is such a requirement, the injuries of the minor were not recoverable under the MC as the spilling of the coffee “has no connection to aviation activity and …[is] likely to occur in other circumstances”.  

Surprisingly, this conundrum was not authoritatively resolved until today. In the German-speaking world there is a preference for risks characteristic to air carriage to constitute accidents. An expression of such preference can be found in the judgment of the Austrian Higher Regional Court of Vienna in this case (which heard the appeal from the Regional Court of Korneuburg).

In the English-speaking world there is no principled approach with two passenger-to-passenger assault cases under the Warsaw Convention System (WCS) demonstrating the divergence of opinion between English and US courts. In both cases female passengers were sexually assaulted during their respective flights. In the case of Morris v KLM Royal Dutch Airlines [2001] EWCA Civ 790 (the issue was not raised in the House of Lords) Lord Phillips rejected any link between accident and the operation of the aircraft under Art. 17. He noted that such a requirement is foreign to the aforementioned definition of the term accident and it was imposed by subsequent to Saks passenger-to-passenger assault cases. As such, it does not stand to judicial scrutiny.

In the case of Wallace v Korean Air 214 F 3d 293 (2nd Cir, 2000) the majority of the Court of Appeals for the Second Circuit held that a weak link between the unusual and unexpected event and the operation of the aircraft should exist in order to have an accident. The Court found that the link was existent in this case as the female passenger “took her seat in economy class on the KAL flight, she was cramped into a confined space beside two men she did not know, one of whom turned out to be a sexual predator. The lights were turned down and the sexual predator was left unsupervised in the dark”.

In the case at hand, the CJEU sided with the analysis of Lord Philips and held that Art 17MC does not contain a requirement that the accident is the result of a “risk characteristic to aviation”. In a judgment that is ridden with policy arguments, the CJEU decided that it contradicts the proclaimed aim of the MC to protect passengers, does not fit into its system of strict and unlimited liability and is superfluous to the ordinary meaning of the term accident.

A significant element for the CJEU is that the carrier can only be exonerated from liability in the first tier or liability of the MC (up to 113,000SDRs/128,800SDRs as of 28 December 2019) in cases of contributory negligence. Imposing such a requirement would give the air carrier additional means to be exonerated, an addition that runs against the system of strict liability of the first tier. Inevitably, this would make recovery for passengers more difficult and breach the celebrated aim of the MC to safeguard their interests. In addition, it is foreign to the definition of accident as an “unforeseen, harmful and involuntary event”.

This decision should not come as a surprise. For the CJEU the requirement of “risk characteristic to air travel” provides an additional layer of protection to air carrier that does not fit into the system of liability of the MC. What is surprising, though, is that the court’s reasoning is rather weak; for example, the Court explains in three lines why the said requirement is foreign to the ordinary meaning of the term accident. It further provides no analysis of the Saks case which remains the main authority on what constitutes accident. Instead, it provides a policy-based decision which confirms that the CJEU has developed a keen interest in distancing the interpretation of the MC from its predecessor. In the Wallace case the Court described the whole debate as a Talmudic one and the CJEU resolved it in a passenger-friendly way.

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