The notion of accident under the Montreal Convention according to the ECJ: the case C-532/18

By ASLA - Assocazione degli Studi Legali Associati

di Maurizio Corain* and Mario Barbera*

Rome - With the recent ruling issued by the Court of Justice of the European Union, on 19 December 2019, following the outcome of case C-532/18, the Court addressed the issue of air carrier liability in the event of an accident on board. The Court's decision originated in the dispute for compensation for damages suffered by a passenger, on board an aircraft of the Austrian carrier Niki Luftfahrt, due to the overthrow of a hot coffee.

Specifically, the passenger, a minor, had been burned when, for unknown reasons, the hot coffee served by the flight attendants to her father had been spilled on her and placed on the folding table placed in front of the latter.

The air carrier denied any involvement of its responsibility in the facts of the case, considering the event not attributable to the notion of accident referred to in art. 17 of the Montreal Convention (1). According to the carrier, this event, the spilling of a coffee, would not in fact be an event inherent in the flight.

Since no specific definition of the notion of "accident" was found in the body of the aforementioned Convention, the Austrian Supreme Court (the Oberster Gerichtshof) referred the European Court of Justice for a preliminary ruling in order to obtain a ruling on the point.

The aforementioned European Court was therefore called upon to provide an interpretation of the notion of accident pursuant to art. 17 co. 1 of the Convention which reads as follows: "the carrier is liable for the damages suffered in the event of death or personal injury caused to the passenger if the accident that caused the death or injury occurred on board the aircraft or during any embarkation or disembarkation operation ”.

The argument put forward by the defendant airline concerned an interpretation of the concept of accident according to which, the "accident", relevant for the purposes of the aforementioned legislation, would be attributable exclusively to cases where the risk of damage is to be found in the state o in the conditions of use of the aircraft or other device used for boarding and / or disembarking operations.
Basically, according to the interpretation advocated by the carrier, where the accident is not essentially connected with the air transport activity, the liability of the same carrier under the Convention would not arise and, as a result, the passenger would be burdened, as also provided for in our legal system regarding aquilian liability pursuant to art. 2043 cod. civ., of the evidence relating to the causal link between the harmful event and the carrier's liability.
Due to the foregoing and since no evidence was reached regarding the causes that caused the accident during the judgment on the merits, the carrier requested the rejection of the passenger's claims for compensation.

However, the Court has adhered to a more literal interpretation of the international norm referred to above which requires nothing more than that the accident occurs on board the aircraft or during boarding or disembarking operations. In fact, there is no provision in international law that requires the accident to have an express functional link with the transport activity in progress. Therefore, in the absence of said express regulatory reference, the Court has deemed it appropriate to apply the provisions of the Vienna Convention of 1969 on the law of treaties and their interpretation and, therefore, the Court has therefore derived the notion of accident by referring to the meaning common and the context in which the term is placed. With the ruling in question, referring to the sense commonly attributed to the notion of accident, it was therefore established that any harmful and unexpected involuntary event should be understood as such.

The Court has therefore ascertained that, in the case of an accident for unknown reasons, the liability of the air carrier must not be subordinated to the connection between the accident itself and the movement and / or conditions of the aircraft. This vector liability is in fact due to the category of objective liability and, therefore, any harmful and unexpected involuntary event that occurred on board the same aircraft may be subject to compensation.
This assessment has its origin in the obligation imposed on the air carrier to keep its passengers free from any potential accident during transport. Such a burdensome and "objective" type of liability for the carrier finds, as the Court reminds it, its counterpart in the possibility provided by the same Convention (2) to limit, or exonerate, its liability in case of contribution of the negligent passenger upon the occurrence of the damage or fact of the third party. Possibility that the Convention reserves to the carrier for those damages that exceed the limit of liability provided for by art.21 of the Convention itself (3).

In conclusion, therefore, the Court - by reason of the ratio underlying the legislation, now, of EU law (ie ensuring a fair balance of interests) and of the sense commonly attributed to the notion of accident - has established that all situations occurring on board an aircraft in which an object used for passenger service has caused injury to one of them, regardless of the correlation between the risk and the transport itself. Referring to the aforementioned interpretation to the present case, the notion of an accident therefore includes injuries caused by the involuntary and unexpected reversal of a hot coffee on board an aircraft for unknown reasons. With this highlighting how the heavy burden of proof concerning any external causes of the accident falls on the carrier, that is, about the negligent contribution of the passenger in causing the damage, being, however, the latter burdened with the mere evidentiary burden of proving the harmful fact.

(1) Convention concluded in Montreal on 28 May 1999 and aimed at unifying certain rules relating to air transport. The Convention was signed by the European Community on 9 December 1999 and approved on its behalf by a Council decision of 5 April 2001 and subsequently published in the Official Journal of the Union 2001, L. 194, p. 38. The Montreal Convention therefore entered into force in the European Union on June 28, 2004;

(2) Article 20 Montreal Convention entitled "Exemption": "If the carrier proves that the person claiming compensation or his successor in cause has caused the damage or contributed to it through negligence, wrongful act or omission, he is exempted from in whole or in part from its responsibilities towards the instant, insofar as negligence or the unlawful act or omission caused the damage or contributed to it. When the claim for compensation is presented by a person other than the passenger, due to the death or injury suffered by the latter, the carrier is likewise exonerated in whole or in part from its responsibilities to the extent that it proves that that passenger caused the damage or contributed to it through negligence, wrongful act or omission. This article applies to all liability rules contained in this agreement, including article 21, paragraph 1 ";

(3) Note that, art. 24 of the Montreal Convention provides for a five-year adjustment by ICAO of the limits of liability prescribed (and expressed in SDRs) to the costs of inflation and other global economic factors. At the beginning of 2019, ICAO proposed a 13.9% increase (the last change in the liability limits dates back to 2009, while in 2014 ICAO did not suggest any revision). The ICAO Member States had three months to raise any objections to the proposed variation; at the end of the period (30 September 2019), the majority of Member States did not file any objection regarding the increase. Here, therefore, that the updated limits that came into force on December 28, 2019 are as follows:
a) for death or personal injury (art. 21): 128,821 SDRs (equivalent to about 160,000 euros);
b) for late damages (art. 22.1): 5,346 SDRs (equivalent to approximately 6,600 euros per passenger);
c) for damage to baggage (art.22.2): 1288 SDR (equivalent to about 1600 euros per passenger);
d) for damage to the goods transported (art.22.3): 22 SDRs (equivalent to approximately 27 euros per kg of lost or damaged goods).
Finally, it should be noted that the new limits - which will be incorporated into the Convention in accordance with international law - will prevail over any conflicting provisions contained in transport documents such as Air Waybill (air waybill) as well as in the general transport conditions applied by the air carrier, also replacing in imperative form the claims for compensation possibly counted on the basis of the previous minor measure of this limit of liability.

* R & P Legal