Article 17.1 of the Montreal Convention 1999 provides that:
"the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
In an October 8 2014 judgment (13-24346) the First Civil Chamber of the Court of Cassation reiterated the basis on which a carrier may be liable where a passenger falls during disembarking operations, in accordance with Article 17 of the convention, which applies to domestic transport within EU member states pursuant to EU Regulation 2027/97, as modified by EU Regulation 889/2002.
On August 12 2011, following a flight from Paris Orly to Toulouse, Mrs X, who was carrying a baby in her arms, missed a step while leaving the aircraft, fell and hurt her ankle.
X decided to bring interlocutory proceedings against the carrier in order to obtain an interim award of damages. On July 9 2013 the Paris Court of Appeal held that the carrier was liable and ordered it to pay damages of €2,500. In its judgment the appeal court held that there had been an 'accident' within the meaning of the Montreal Convention since:
- the fall did not result from the passenger's physical condition (ie, she had not fainted); and
- there was no fault on the part of the passenger since she had a child in her arms and therefore could not properly see the ground. The court found that the airline personnel should have assisted the passenger – for example, by taking her baby so that she could disembark without risking a fall.
The airline appealed to the Court of Cassation.
Grounds of appeal
In support of its appeal, the air carrier raised three arguments:
- Liability was necessarily governed by Article 17 of the Montreal Convention. In accordance with the terms of this article, the carrier is presumed liable for death or personal injury arising in the aircraft or during embarking or disembarking operations, provided that such death or injury results from an accident. Case law has defined an 'accident' as a sudden event which is independent of the victim. In this case, however, the victim's fall did not result from an accident since it had not been demonstrated that such fall was attributable to an event which was independent of the victim. Further, the carrier argued that in the context of interlocutory proceedings such as these, the claim can succeed only if there is no arguable defence thereto (in accordance with French procedural rules). In this matter, both the Paris Court of First Instance and the Paris Court of Appeal had ruled on an arguable defence, since they found that the passenger's unexplained fall could amount to an accident under Article 17 of the Montreal Convention.
- The absence of fault on the part of the victim did not necessarily mean that an accident had arisen as a matter of French case law, and could not therefore trigger the carrier's liability. It was thus insufficient for the appeal court simply to have found that no fault could be attributed to the victim during disembarking operations in order to find the carrier liable.
- While the conclusion of a contract of carriage with a passenger imposes certain obligations on the air carrier, there is no contractual or legal requirement for the carrier to assist passengers during ordinary operations unless the passenger has sought such assistance. The appeal court was thus not entitled to find that airline personnel should have spontaneously helped X to disembark from the aircraft.
The First Civil Chamber of the Court of Cassation, which has often ruled on various issues arising under the Montreal Convention, annulled the Paris Court of Appeal judgment and held that the latter had not properly attributed the loss to an accident arising during disembarking operations.
As a result, the appeal court had ruled on an arguable defence, which it was not entitled to do in the context of interlocutory proceedings.
The judgment of the Court of Cassation is consistent with prior case law relating to the proper application of Article 17 of the Montreal Convention and the standard definition of what amounts to an 'accident' in this context.
Therefore, the decision should reassure both domestic and international carriers as to the manner in which the French courts will apply Article 17. The accident which may give rise to presumed liability on the carrier's part must relate to aircraft operations. Claims arising out of personal injury sustained by passengers who fall when embarking or disembarking, or from the passenger's physical condition (eg, otitis or deep vein thrombosis), are therefore not covered by Article 17, as French (and foreign) courts have already ruled.
It is surprising that the Paris Court of First Instance and subsequently the Paris Court of Appeal should have seen fit to disregard the previous case law on this issue, and to impose more onerous obligations on air carriers. The Court of Cassation's decision is therefore a welcome reminder of the manner in which Article 17 and the term 'accident' should be construed.
For further information on this topic please contact Jean-Baptiste Charles or Olivier Purcell at Holman Fenwick Willan France LLP by telephone (+33 1 44 94 40 50), fax (+33 1 42 65 46 25) or email (firstname.lastname@example.org or email@example.com). The Holman Fenwick Willan France LLP website can be accessed at www.hfw.com.
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