FORESEEABILITY AND ARTICLE 17 OF THE MONTREAL CONVENTION 1999: THE CJEU HAS STEPPED ON A VERY SLIPPERY SLOPE

The CJEU recently issued a decision in the case of YL v Altenrhein Luftfahrt GmbH (12 May, Case C‑70/20, ECLI:EU:C:2021:379) interpreting the term “accident” in Article 17 of the Montreal Convention 1999. The said Article provides that an airline is liable for a passenger’s bodily injury on condition that the injury is caused by an accident that takes place on board the aircraft or during the operations of embarking or disembarking. The case was referred to the CJEU by the Supreme Court of Austria.

The facts of the case are not overly complicated. The passenger claimed to have suffered spinal disc injury (the bodily injury) as a result of the heavy landing of the aircraft (the alleged accident) that was transporting her from Vienna to St. Gallen/Altenrhein. The flight data recorder demonstrated that the vertical load borne by the landing gear and the structural parts of the aircraft during landing reached 1.8g, below the manufacturer’s limitation that was set at 2g. The Court noted that the passenger experienced a heavy landing, yet it was “within the normal operating range of the aircraft in question” (para 14). The Court further noted that heavy landings are to preferred for safety reasons at the St Gallen/Altenrhein airport and accepted that the pilots committed no errors (para 14). 

Historically, the rule of thumb is that cases of heavy landing are not considered accidents for the purposes of Article 17, unless the roughness of the landing is “either unusual or beyond the expectations of an air traveller” (Salazar v Mexicana Airlines 20 Avi 17,114 (WD Tex, 1986), affd 800 F 2d 1143 (5th Cir, 1986) as found in Shawcross and Beaumont on Air Law, Chapter 37, para 691). The CJEU concluded that the heavy landing in question was not an accident, yet in reaching this (correct) conclusion followed a way of thinking that has the potential to change decidedly the interpretation of the term “accident” in Article 17.

The term “accident” is not defined anywhere in Montreal Convention 1999 (or in its predecessor, the Warsaw Convention). Its prevailing interpretation comes from the US Supreme Court case of Air France v Saks 470 US 392 (1985) which, in a nutshell, defined accident as an unusual or unexpected event that is external to the passenger and not the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft.  As Professor David Mcclean recently wrote (in file with the author) regarding the Saks definition “…the unexpectedness of what has happened is central to the idea of an accident. It seems important that unexpectedness be viewed from the standpoint of the passenger; to see it from that of the airline would attract ideas of foreseeability that belong to a negligence analysis”. The benefits of the no-negligence interpretation of Saks (and the reasons for becoming the prevailing definition since then) is that it relieves the passengers of the requirement to prove fault and creates a standard that is detached from domestic interpretations of value-laden terms such as duty of care and foreseeability.   

The reasoning of the CJEU has the potential to wave goodbye to this era of interpretation as it applies the definition of the term “accident” that was recently created in the case of Niki Lufthahrt (19 December 2019, Niki Luftfahrt, C‑532/18, EU:C:2019:1127), namely that accident is an “unforeseen, harmful and involuntary” event. As such, the focus of the Court’s inquiry in our case was whether the heavy landing was “unforeseen”. For the CJEU, foreseeability is not to be determined by reference to the passenger’s expectations as that would create unfair results for airlines that run against the balance of interests achieved in the Montreal Convention 1999. Instead, it is to be judged from the airline’s perspective, namely by reference to industrial standards, operating manuals and safety regulations:

“Compliance… is aimed at ensuring a landing accomplished in accordance with the applicable procedures and limitations, set out in the flight manual of the aircraft in question, or any equivalent airworthiness documentation relating to it, and taking into account the rules of the trade and best practice in aircraft operation, even if that landing is perceived by certain passengers as being harder than they were expecting” (para 39).

As the landing in question complied with the technical procedures and margins and the pilots committed no error, the CJEU concluded that the bodily injury did not result from an accident. By doing so, the Court ushers us in an era that negligence takes centre stage in the legal inquiry of Article 17: the further the acts of aviation professionals fall short of industrial norms, the easier will be to establish that the injury was caused by an unforeseeable event that constitutes an accident. As such, the door is open for courts to make policy judgments based on negligence considerations that have strong and diverse domestic flavours.  

Admittedly, the tendency to link the term “accident” in Article 17 with industrial standards is not new. It has been brewing for a while as several courts have interpreted (or considered interpreting) the “unexpected” element of the Saks’ definition by reference to industrial practices (for example, see my comments on Labbadia v Alitalia (Societa Aerea Italiana SpA) [2019] EWHC 2103 and Salih v Emirates (No. 2) [2019] NSWDC 715 in this blog). Even Lord Mance in In re DVT [2006] 1 AC 495, paras 78-79 linked, albeit obiter, the “usual, normal and expected operation of the aircraft” to industrial behavioural standards, when he argued that “[t]he present case involved carriage by air in an aircraft and, in a manner, which were, in terms of industry standards and practice, at the relevant times normal, usual and expected….But it is accepted that it was neither industry nor the respondent air carrier’s practice at the relevant time to give such warnings or advice”.  Lord Scott, in the same case (para 24), went a step further and posed a question that, following the CJEU decision, becomes relevant again: “how the case would look if there were such an established practice and if by an oversight the usual warnings were not given does not arise for consideration in the present case”.  

The reasoning of the CJEU in YL gives the green light for such considerations to dominate the inquiry of what constitutes accident;  even the use of the term “foreseeability”, instead of “usual and expected”,  has so strong negligence connotations that courts are likely to explore them by reference to their own cognitive biases and their domestic tort law cases. While the YL case suggests that the universal industrial standards of aviation will provide this common ground of uniform interpretation of an international treaty, I am not optimistic. And I will use the following factual scenario as a taste of what we might experience in the future with respect to common industrial standards:

In the unreported English case of Singhal v British Airways plc (2 November 2006, Uxbridge County Court) the passenger injured her left ankle while disembarking from a B777 on a jetty at LHR that was fitted at a level six inches below the door. The District Judge held that the injury was not caused by an accident as he accepted evidence of industrial standards, namely that “on a 777 aircraft…. a step of six inches or so is necessary because otherwise the top of the jetty will foul the door, which on an aircraft of that type opens outwards…”(para 10). As the jetty was operated in accordance with the airport manual, the drop could not be described as unusual and unexpected, and thus could not qualify as accidental.

On appeal (20 October 2007, Wandsworth County Court), Mr Recorder Bueno QC reversed the decision, as he held that the airport manual was not enough to make the six-inch fall so common and generic to qualify as usual and expected. For him the manual was “confined to the apparent practice at Heathrow Airport” and required evidence that the six-inch drop is universal practice:

“There is, for example, no evidence whatever of the practice at other airports, whether in the UK or elsewhere, with regard to Boeing 777 aircraft or other aircraft with different exit characteristics, whether this form of alignment is universal, whether different types of jetway are used which eliminate the necessity for a step, whether ramps are employed, whether practices elsewhere are to give warnings – and so on and so forth. It would thus be unsafe to make a finding which is based only on the manual in use at Heathrow Airport…” (para 49).

I wrote in 2009 (Risk and Liability in Air law, paras 5.242-5.245) that this conclusion runs contrary to the spirit of the Convention and the reasons behind an interpretation that favours unexpectedness over foreseeability. I also hoped that it will not be used extensively, a statement that was accurate until the 12th of May 2021. It remains to be seen whether courts around the world will be persuaded by the new approach of the CJEU. If they do, there is a real risk that the interpretation of the term “accident” will be disunified by reference to domestic negligence concepts.

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