Case C‑532/18 (pending case)
The Montreal Convention enshrines a true objective responsibility of the air passenger carrier.
This Article 17 (1) states that ” the carrier shall be liable for the damage caused in the event of death or bodily injury to a passenger, solely because the accident which caused the death or injury occurred on board the aircraft or during any boarding or disembarking operations “.
The “Montreal” system virtually eliminates any possibility of exemption for injury not exceeding SDR 100,000. Neither proof of the measures taken to avoid damage nor force majeure releases the carrier from liability.
Only proof of the” negligence“,” act “or” omission “of the person seeking compensation, or of the person whose rights he holds responsible for the damage, allows the carrier to exonerate itself” in whole or in part ” (art.20).
The fault of the victim is therefore the one and only case of exemption in the carriage of passengers. It allows the carrier to fully or partially relieve itself of its responsibility.
Therefore, the concept of an air accident is of particular importance as being the only (or almost) exonerating case allowing the carrier to relieve itself of any liability towards a passenger.
The air accident is an event outside the passenger that is interpreted restrictively so as not to make the air carrier liable for artificial passenger claims and outside the scope of its liability.
The CJEU will soon have to decide on the definition of accident, an issue not settled by the Montreal Convention.
The question referred to the CJEU for a preliminary ruling read as follows :
Is there an “accident” underlying the liability of the air carrier within the meaning of Article 17 (1 ) of the Convention for the unification of certain rules relating to international air transport concluded at Montreal on 28 May 1999, signed by the European Community on 9 December 1999 on the basis of Article 300 (2) EC, approved on its behalf by Council decision 2001/539/EC (1) of 5 April 2001 (Montreal Convention) when a cup of hot coffee, placed on the shelf of a seat of an airplane in flight, slips for an unknown reason, spills and burns a passenger?
The Court of Cassation had the opportunity to clarify the content of the concept of accident.
Thus, the Court of Cassation dismissed a passenger who complained of pain in the ears during the descent on the grounds that the passenger ” did not invoke a flight incident, but only pain felt during the descent and landing phases “.
For the High court, the personal injury for which the passenger seeks compensation must be attributable to “an accident occurring on board the aircraft or during the boarding and disembarking operations”, the mere coincidence between the flight and the appearance of injuries is not sufficient to make play the presumption of responsibility established by Article 17 of the Montreal Convention ” (Cass. 1st civ., 15 Jan. 2014, n° 11-21. 394)
Therefore, a pain experienced during the descent is not an air “accident” involving the responsibility of the carrier (Civ. I, 15 January 2014).
In the same way that an asthma attack during a transport is not an external event to the person (Cass. 1st civ., 29 Nov. 1989, n° 88-13. 772: “it was not the result of any of the elements produced that the pulmonary embolism, which occurred several days after the end of the trip, could be attributed to an event outside the person of Mrs. Y… that would have occurred on board the aircraft or during the boarding or disembarkation operations which alone, would be such as to invoke the presumption of responsibility established by Article 17 of the Warsaw Convention ; that it was therefore able to infer, without incurring the objections of the plea, that the air carrier’s liability could not be retained “).
Deafness, which appeared after the flight, is not causally related to the landing by the mere fact of the concomitance between the lesion and the flight (Civ. I, 6 Dec. 1988: “Whereas in order to accept in principle the request of Mr X…, the Court of Appeal stated that TAT’s liability is incurred by the mere coincidence between the theft and the occurrence of the injury suffered by Mr. X… which has no other evidence to report other than that of having been the victim of damage during transport ; that it adds that the pathological condition of Mr. X… in so determining, the Court of appeal has violated the abovementioned text which required it to inquire whether the damage had been caused by an event external to the person of the victim ; FOR THESE reasons, and without the need to rule on the other grievances of the appeal: BREAKS AND ANNULS, in all its provisions (…) »
In the same vein, the cardiac arrest of a passenger on arrival of an international flight followed by a subsequent coma and death. The fact that the discomfort occurred when the passenger was using the treadmill is not attributable to an accidental event outside the victim, since it is a mere coincidence between the flight and the discomfort (CA Paris, 5 March 1999, n° 1997/10677 ).
The concept of accident therefore refers to the broader legal principle of causation.
Neither the Warsaw Convention nor the Montreal Convention require proof of causation.
Case law has consistently held that in order for an accident to occur within the meaning of the aforementioned Convention, a sudden or unusual event outside the person of the passenger must occur.
The accident must occur within the scope of the responsibility of the carrier, that is, during the phases where the carrier retains a broad power to control events.
On this point, a judgment of the Toulouse Court of Appeal is particularly ” speaking “.
“Article 17 of the Montreal Convention applicable in the present case provides that the carrier shall be liable for the damage caused in the event of death or bodily injury to a passenger, solely because the accident which caused the death or injury occurred on board the aircraft or during any boarding or disembarking operations. The generator fact must be an accident. An accident is a bodily injury caused exclusively by an external, unexpected and sudden event of which the insured person is involuntarily a victim.
There is no accident when the injury is only related to a pre-existing pathological condition and is the result of the victim’s own reactions to the normal and predictable operation of the aircraft ” (CA Toulouse, July 6, 2015).
It remains to be seen whether the CJEU will “align” itself with the jurisprudential definition adopted by the French courts.
At this stage, the definition proposed in the opinion of the Advocate General is in line with French case law on the subject.
“Article 17 (1) of the Convention for the unification of certain rules relating to international carriage by air, concluded at Montreal on 28 May 1999 and approved on behalf of the European Community by Council decision 2001/539/EC of 5 April 2001, must be interpreted as constituting an “accident” capable of giving rise to the liability of the air carrier, under that provision, any event which has caused the death or bodily injury of a passenger and which has occurred on board the aircraft, or during boarding or disembarkation operations, which is of a sudden or unusual nature and has an origin outside the person of the passenger concerned, without it being necessary to investigate whether the said event is due to a risk inherent in air transport or is directly related to that transport “.
Case to follow.