A lot of noise for nothing? / ANALYSIS

The compensation limit referred to in art. 22 of the Montreal Convention in the application of the jurisprudence of the Court of Justice and the Court of Cassation.By ASLA - Associazione degli Studi Legali Associati

di Maurizio Corain* and Chiara Santoboni*

Rome - It is known that the Convention for the unification of certain rules relating to international air transport, signed in Montreal on May 28, 1999, provides for art. 22 co. 2 a limit to the carrier’s liability in the event of destruction, loss, deterioration or delay set in the sum of 1,131 Special Drawing Rights. This limit can be overcome, in accordance with the provisions of the second subparagraph of the same paragraph 2 of the article, only if the passenger has, at the time of delivering the baggage to the carrier, made a special declaration of interest in the redelivery.

The legislation, although it seems not to require interpretation due to its clear literal tenor, has instead been the subject of interpretative sentences rendered by the Court of Justice and of two recent sentences rendered by the Court of Cassation: the legislation, therefore, has come to interested even the highest courts and not only the chairs of unskilled judges.

This, almost unexpectedly, given that the clarity of the uniform law, in one with what should be the peaceful application of domestic law, should have discouraged the involvement of these high courts.

But this was not the case and we see why.

In particular, it emerges from the examination of the rulings of the national judges, especially those who are not togates, that the question that those who have been called upon to apply the law of uniform law is concerned with:
a. automaticity (recte, objectivity or otherwise of the compensation limit;
b. indemnifiability of the non-pecuniary damage to be calculated within the same limit.

With regard to the possibility of recognizing without distinction and objectively to the passenger an amount equal to the limit of 1,131 DPS, at the outcome of numerous interventions of the jurisprudence, it has finally come to exclude this eventuality. With sentence no. 14667/2015, the Court of Cassation states that the law of uniform law leaves “to the rules of each ordering of the member States the fixing of the proper content of the obligation to compensate”; from this, in cases where the application of national law is not in question, with reference to pecuniary damage, reference should be made to art. 1218 et seq.
Therefore, in the absence of proof and financial damage, no compensation can be recognized.
Furthermore, the damage, to be compensable, must not only be an immediate and direct consequence of the non-fulfillment, but also be foreseeable: already this consideration excludes any automatic application, in any case of delayed or failed delivery of the baggage, of the compensation limit.

Also with reference to non-pecuniary damage, it must be assumed that, for the recognition of the relative compensation, the conditions provided for by the national law must necessarily exist.

The Court of Justice, called to respond to the preliminary question if the limit of liability pursuant to art. 22, n. 2, of the Montreal Convention includes both the material damage and the non-material damage resulting from the loss of the baggage, has, in the case C-63/09 (Walz v. Clickair SA), held that “the term damage contained in art . 22, n. 2, of the convention for the unification of certain rules relating to international air transport concluded in Montreal on May 28, 1999, which sets the limitation of the air carrier’s liability for damage resulting in particular from the loss of baggage, must be interpreted as meaning that includes both material damage and moral damage.”

In the argument of the all-inclusive nature of the notion of damage, the Court of Cassation, with the aforementioned sentence n. 14667/2015, considered, with reference to the non-pecuniary damage, to have to refer to the discipline dictated by the art. 2059 cod. civ., in the light of the “living law” consolidated by the sentences of the civil United Sections of November 2008 (see Cassation, section one, November 11, 2008, No. 26972), that is, according to the constitutionally oriented interpretation of this rule which allows the indemnifiability of non-pecuniary damage only in the cases “provided for by law”, that is to say “in the hypothesis of an illicit fact abstractly configurable as a crime, of cases in which the law expressly allows the recovery of non-pecuniary damage even outside of a hypothesis of crime and, finally, of an illicit fact seriously damaging the inviolable rights of the person, as such object of constitutional protection. With the further clarification that in the latter hypothesis (as in that of express legislative provision), the non-pecuniary damage will be compensable even if deriving from contractual non-fulfillment (since, precisely, traced back from the current “living right” to the pursuant to article 2059 of the civil code, and not in the sphere of the contractual discipline, pursuant to articles 1174, 1218,1223, 1225 and 1227 cc).

The conclusions reached by the Supreme Court in 2015 were reaffirmed in the recent sentence n. 4995/2019.
With this arrest, the Supreme Court pointed out that the system of limitation of liability, according to the law of uniform law, represents a balanced reconciliation of the interests of airlines and passengers’ rights, which does not damage any constitutional parameters: on the one hand, there is the arrangement of a mechanism that allows to protect the airlines from the risks that would result from the possibility for passengers to request unlimited compensation for non-pecuniary damage consequent to the loss of baggage; on the other hand, the latter have the possibility of protecting themselves from any damage deriving from the loss of their baggage by releasing the appropriate declaration of interest on delivery, as set forth in art. 22 of the Montreal Convention, or demonstrating the existence of the conditions of inapplicability of the aforementioned limitation of liability pursuant to art. 22, paragraph 5.
In addition, with this recent ruling, the Supreme Court reiterated that limiting the compensation liability of the same carrier, established by the Convention, art. 22, n. 2 operates with reference to the damage of any nature suffered by the passenger himself and, therefore, not only in its merely patrimonial component, but also in the non-patrimonial one, to be compensated, if domestic law is applied, pursuant to art. 2059 of the Civil Code, as a serious consequence of the serious injury of the person’s inviolable rights, constitutionally protected.

The fact, however, that the notion of compensable damage, from uniform law also includes non-pecuniary damage must not be used for legally aberrant purposes.

Given in fact that the moral damage is compensable only if it derives from a fact constituting a crime, if it has received a suitable typification (such as in the case of damage from damaged holiday), or if it derives from the fact that it damages the constitutionally guaranteed rights, in most of cases of delayed delivery and loss of the baggage said damage does not exist and, therefore, is not refundable.

It is in fact excluded that this alleged damage derives from the fact constituting a crime.

It is likewise excluded that such damage derives from a typed fact, or whose reparable interest is already predetermined at a regulatory level; in this regard, in fact, the Montreal Convention does not provide for any non-pecuniary damage. On this point, the Cassation (already in 2015 with sentence No. 14667, taken literally in the decision of the same Court No. 4995/2019) stated that: “as mentioned, the Montreal Convention of 1999, ratified and enforced with the L. n. 12 of 2014, does not establish itself to compensate the non-pecuniary damage, but - using a generic notion of damage - limits its amount to an absolute limit (except for special declaration of interest) within which it is to include every type or manifestation of the itself, whose decomposition, due to the type of prejudice (material or “moral”), may take place, or not, based on the rules set by the individual legal systems of the member states. Therefore, as there is no explicit regulatory provision for compensation for non-pecuniary damage as such, the same interests as the person whose injury, due to the breach of contract by the international air carrier (due to delayed delivery of the baggage), can be repaired, also they not otherwise positively typed ex ante, they will have to be identified by the judge among the inviolable rights of the person, as such object of constitutional protection.”

Finally, in the majority of such cases, no inviolable right of the person is violated: therefore, the third hypothesis from which it is possible to infer compensation for non-pecuniary damage must also be excluded.

In fact, the “stress” and the “psychological discomforts” resulting from the unavailability of personal objects certainly do not represent circumstances sufficient in themselves to integrate a violation of the inviolable rights of the person constitutionally guaranteed, as required by the United Sections of the Supreme Court in the known judgments so-called of “San Martino” made in the year 2008 (from the number 26972 to that marked with the number 26975, all published on 11 November 2008), where the Judges of legitimacy affirmed the principle for which “clearly not worthy of the compensation compensation, invoked by way of existential damage, are the prejudices consisting of discomforts, annoyances, disappointments, anxieties and any other type of dissatisfaction concerning the most disparate aspects of everyday life that each one conducts in the social context.”

We would therefore have to say... a lot of noise for nothing: sometimes a codicistic application of national law would be enough to achieve a correct interpretation and application of uniform law as well.

*Studio Rp Legal