The question of who is a passenger on an aircraft may at first sight seem relatively straightforward. When we think of a passenger, we envisage a person who has purchased an airline ticket for a round trip or a single flight.

However, there are some different scenarios that call into question who a passenger on board an aircraft actually is. For example, where a person on board is a member of the operating crew (including e.g. student pilots), cabin crew or supernumerary crew, or indeed who is otherwise employed on the aircraft (e.g. a helicopter winchman), there is general agreement that they are not a passenger for the purposes of the international conventions relating to carriage by air (namely the Warsaw Convention 1929, the Hague Protocol 1955 and the Montreal Convention 1999). In respect of the latter category, being otherwise employed on an aircraft has been held to include the situation where the person’s primary duties may not be intended to occur on the aircraft. For example, a maintenance representative employed to deal with procedures to be followed while the aircraft is on the ground at each stop, but who is also available during each flight should anything occur, would not therefore be classed as a passenger.

Herd v Clyde Helicopters

The question of who is a passenger arose in the 1996/97 Scottish case of Herd v Clyde Helicopters Ltd, which went all the way to the House of Lords. In that case, a police sergeant employed by the Strathclyde Police Authority was on a surveillance helicopter flight when it crashed and he was killed. It was the Police Authority that had contracted with the air carrier for the contract of carriage, not the sergeant, and the sergeant was clearly not an employee of the air carrier. The question before the court was whether he was a passenger under the Carriage by Air Acts (Application of Provisions) Order 1967 (this being a domestic flight) and therefore fell within the Warsaw Convention 1929 as amended by the Hague Protocol 1955, which was applied to qualifying domestic flights by the 1967 Order.

The House of Lords held (as had the First Instance and Appeal courts) that for the application of the 1967 Order it was not necessary for a person to be carried under a contract to which he was a party or under a contract of any particular type (the ticketing requirements of the Warsaw Convention 1929 not having been carried over into the 1967 Order). The sergeant was on board the helicopter for the purpose of carrying out his police duties and had no responsibility for the operation of the helicopter. He was therefore properly regarded as a passenger. There was no relationship between the carrier and the sergeant, other than that of carrier and carried.

If the sergeant had been employed directly by the air carrier to carry out employment duties on behalf of the air carrier (or had been part of the operating crew), then he would not have been a passenger. However, there was a contract of carriage between the Police Authority and the air carrier, and the sergeant was being carried pursuant to that contract. This was enough to put him within the realms of being a passenger.

Wucher and Euro-Aviation v Santer – Austrian proceedings

The issue of who is a passenger was the subject of a recent (26 February 2015) preliminary ruling by the Court of Justice of the EU. The Supreme Court in Austria had referred the case of Wucher Helicopter GmbH and EuroAviation Versicherung AG v Fridolin Santer (C-6/14) to the CJEU in order to clarify a number of questions relating to who is a passenger on board an aircraft.

In this case, Mr Santer was employed by his employer, Ötztaler Gletscherbahn-GmbH & Co. KG, as a member of the avalanche commission responsible for safety in the glacier area of Sölden in Austria and his employer’s ski pistes. Mr Santer had to decide which pistes must be closed and where avalanches needed to be blasted. Blasting was to be carried out from a helicopter, and for this purpose Ötztaler had entered into a contract of carriage with the air carrier (Wucher); a contractual situation similar to that in Herd, albeit in this case related to Austrian rather than UK domestic carriage.

Mr Santer’s duties as a “guide familiar with the terrain” on board the helicopter included directing the pilot (who was employed by the air carrier) to the places where the explosive charges were to be thrown out. Mr Santer was also required to open the helicopter door during the flight at the pilot’s direction and to hold it open for a particular period of time so that the person sitting behind him could throw out the charge. During this procedure on the incident flight a sudden gust of wind caught the slightly open door, causing it to fly open. Mr Santer was unable to let go of the door and as a consequence seriously injured his elbow. Mr Santer’s claim was against the air carrier (Wucher) and the air carrier’s insurer (Euro-Aviation).

The First Instance Austrian court held that Mr Santer was a passenger on the flight. However, the Appellate court held that Mr Santer was not a passenger within the Montreal Convention, since the purpose of the flight was the blasting of avalanches rather than to carry him from one place to another. However, Austrian law was not precluded from applying to Mr Santer’s claim for compensation.

On appeal by Wucher and Euro-Aviation the Supreme Court considered that whether or not Mr Santer was a passenger was a crucial question as to whether the Montreal Convention applied to Mr Santer’s claim for compensation. The Supreme Court chose to clarify certain questions with the CJEU, with the intention of obtaining a common understanding of the concept of “passenger” in EU law and in the Montreal Convention.

Wucher and Euro-Aviation v Santer – CJEU ruling

The essential question referred was whether Mr Santer, on the facts discussed above, was a passenger or ranked among “on-duty members of both the flight crew and the cabin crew”. This raised issues related to the definition of “passenger” within the meaning of EU Regulation 785/2004, which imposes insurance obligations on air carriers and aircraft operators (such as Wucher), and Article 3(g) of that Regulation, which defines a “passenger” as: “…any person who is on a flight with the consent of the air carrier or the aircraft operator, excluding on-duty members of both the flight crew and the cabin crew”. If Mr Santer fell within this definition and was a passenger, or indeed even if he fell outside this definition and was not a passenger, the Austrian court then wanted to know whether he was a passenger for the purposes of Article 17(1) of the Montreal Convention.

The CJEU first turned to the definition of “passenger” within the Regulation and held that Article 3(g) of the Regulation, classifying a person as a member of the flight crew and the cabin crew, is an exception to the rule that the person on board is a passenger. Such exceptions are to be interpreted strictly, so that general rules are not negated. Mr Santer did not perform tasks of the flight crew. His task of opening the helicopter door also did not confer on Mr Santer the status of being a member of the cabin crew. Indeed, the CJEU stated that the pilot, as commander on board, is always authorised to give instructions to any of those on board the aircraft, including passengers, so this fact did not mean that Mr Santer was part of the cabin crew.

Therefore, the CJEU found that Mr Santer was a passenger for the purposes of Article 3(g) of the Regulation. It went on to say that Article 3(g) must be interpreted as meaning that the occupant of a helicopter operated by a Community air carrier, who is carried on the basis of a contract (of carriage) between that air carrier and the occupant’s employer in order to perform a specific task such as that at issue in the main proceedings, is a “passenger” within the meaning of that provision.

To answer the question relating to the Montreal Convention, the CJEU recognised that the Montreal Convention is an integral part of the EU legal order, and that it (the CJEU) has jurisdiction to give a preliminary ruling concerning the interpretation of the Convention. The CJEU considered that it must be ascertained whether the purpose of the flight at issue was the “carriage of passengers” within the meaning of the Convention, and expressed the view that the absence of documents of carriage did not affect the existence or validity of the contract of carriage.

Therefore, where a contract of carriage exists and all the other conditions for the application of the Convention (i.e. pursuant to Article 1 and the scope of application) are fulfilled, it applies, irrespective of the form that contract of carriage might take. The flight in question was one for the carriage of employees of Ötztaler (of whom Mr Santer was one) to the places where they had to perform their usual tasks. It was precisely on a contractual basis (that being the contract of carriage between the air carrier and Ötztaler) that the air carrier flew Mr Santer from the take-off location to the places where the avalanche blasting was to take place and then brought him back to the take-off location.

The CJEU therefore held that Article 17(1) of the Montreal Convention must be interpreted as meaning that a person who comes within the definition of “passenger” under Article 3(g) of EU Regulation 785/2004 also comes within the definition of “passenger” under Article 17(1) of the Convention, once that person has been carried on the basis of a “contract of carriage” (within the meaning of Article 3 of the Convention).

This finding of the CJEU is consistent with the conclusion of the House of Lords in Herd and is a welcome clarification at an EU-wide level of who is a passenger for the purposes of the Montreal Convention.