International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Italian courts interpret the similar provisions of the Warsaw Convention and the Montreal Convention in the same way.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

The liability of air carriers for passenger injury and death under European provisions - which are directly effective in Italy - is governed by Regulation (EC) No. 889/2002, which recalls the provisions of the Montreal Convention. Furthermore, the EC Regulation requires the ‘Community air carrier’ (eg, the air carrier with a valid operating licence granted by a member state in accordance with Regulation (EC) No. 1008/2008) to provide an advance payment within 15 days in cases of injury or death of a passenger, sufficient to cover immediate economic needs on a basis proportionate to the damage suffered. In the case of death, the advance payment will not be less than 16,000 special drawing rights (SDR).

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

According to the Italian courts, the carrier is the person or the entity that is granted with a valid operating licence by the competent authority. According to the Italian courts, both the contractual carrier (which is the one with whom the passenger has entered into the air transport agreement) and the operating carrier (which is the one that is actually in charge of performing the carriage) are considered as carriers in accordance with the Montreal Convention and the Warsaw Convention.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

According to Italian courts and legislation:

  • ‘accident’ is any unusual event (meaning any event that will be considered as uncommon with regard to the ordinary carriage performance), external to the passenger, occurring to the latter during the execution of the air carriage (Cass. Civ. No. 14666/2015). Such event will take place between the time any person ‘boards’ the aircraft until all passengers have disembarked;
  • ‘bodily injury’, as per the interpretation given by Italian law and by the courts, should be any illness in the body. Nevertheless, according to the decision of the EU Court of Justice of 6 May 2010, there has been an extensive interpretation of the damage mentioned in article 17 of the Montreal Convention to include even non-material damage. Such interpretation is therefore shared by some Italian courts (Court of Biella on 16 June 2016) (see question 37); and
  • ‘in the course of any of the operation of embarking or disembarking’ has caused a conflict of case law in Italian courts. On one hand, it has been interpreted strictly by stating that the carrier will not be deemed liable for the damages suffered by the passenger in the course of the transportation between the terminal and the aircraft, because such transportation is executed by an autonomous subject that could not be considered as an accountable part of the carrier itself (Cass. Civ. No. 12015/2001). On the other hand, more recent decisions broadened the liability of the air carrier to damage that occurred during preliminary or ancillary activities in connection with the carriage (such as the above-mentioned transportation of passengers between the terminal and the aircraft). In such cases, the air carrier has the burden of proof that the damage is a consequence that is unforeseeable and unavoidable with ordinary and reasonable diligence (Court of Messina No. 1147/2015, Cass. Civ. No. 9811/2018).
No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

According to the Italian courts, pursuant to the Conventions and the Italian Navigation Code, there is a presumption of liability on the carrier. In order to overcome such presumption, the carrier will prove its ‘no negligence’ defence by having adopted ‘all reasonable measures’ to avoid the damage. The generic proof of the use of ordinary diligence has not been deemed as sufficient, but Italian courts demand the carrier provide the evidence of each concrete and practical measure adopted, and evidence of the specific cause of the damage. As a consequence, the carrier bears the liability for any damage caused to the passengers owing to unknown causes (Cass. Civ. 20787/2004).

With regard to ‘wilful misconduct’, Italian courts stated that the liability of the carrier should be objectively appraised, on the basis of normal forecasting criteria. According to such decisions, the carrier’s liability lies in the ‘colpa con previsione’ (wilful misconduct - Court of Milan on 25 September 1995; Cass. Civ. No. 8328/2001): in such cases, the carrier has been considered as liable on the basis of the fact that the latter acted recklessly and accepted the damage as a possible outcome of its conduct, being aware of the fact that it could have avoided it.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

Regulation (EC) No. 889/2002 requires the carrier to anticipate a payment, in the case of injury or death of a passenger, in order to cover immediate economic needs in proportion with the suffered damage, within 15 days since the day of the damage itself. In the case of death, the advance payment will not be less than 16,000 SDR.

Obviously, EC Regulation is applicable only to those carriers that can be considered as community carriers (carriers that have their operating licence issued by the competent authority of a member state of the EU, pursuant to Regulation (EEC) No. 2407/92).

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Italian courts interpret the jurisdictions set forth by the Montreal and Warsaw Conventions as follows:

  • domicile of the carrier: it could be both the head office or the local office of the air carrier, should the latter have appointed an authorised representative in such local office (Cass. Civ. No. 22035/2014);
  • principal place of business: it is the head office of the air carrier;
  • place of business through which the contract has been made: it is the local office of the air carrier where the ticket has been bought there by the passenger; it can also be a travel agency if it is proven that it sold the tickets on the basis of an agreement with the local office of the air carrier (Cass. Civ. No. 13689/2006);
  • place of destination: the place of final destination of the flight as agreed between the air carrier and the passenger; and
  • place of residence of the passenger: it is the state where the passenger has its normal place of residence. Combined with the Italian Consumer Code, passengers, in their capacity as consumers, are entitled to bring their cases against the air carriers before the court of the place of their residency.

Furthermore, there has been a conflict of case law in the Italian courts on the interpretation of the subject articles, settled by several decisions of the Cassazione Civile (Italian Supreme Court), and, according to the latter, the above-mentioned criteria are to be considered as international jurisdictions criteria, while the internal jurisdiction (on the basis of which it is determined before which office of the court or before which court within the national territory the case should be brought) will be ruled by internal national law (Cass. Civ. No. 22035/2014).

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

Italian courts interpret article 35 of the Montreal Convention and article 29 of the Warsaw Convention, combined with article 949-ter of the Italian Navigation Code, and apply the two-year limitation as a forfeiture period. Therefore, according to article 949-ter, the Italian courts state that passengers who intend to bring a claim against the carrier should file it within two years after the arrival to the destination of the carriage; such period cannot be suspended (United Division of Cass. Civ. No. 21850/2017).

At present, with regard to the passengers’ rights arising by Regulation (EC) No. 261/04, there is no settled case law on this issue.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Where the contractual carrier does not perform the carriage, because the latter is performed by a third operating carrier, Italian courts, by applying the provisions set forth in the Montreal Convention, consider the operating carrier as jointly liable together with the contractual carrier before the passengers’ claims. It is understood that the operating carrier’s liability is limited to the damage that occurred during the leg of the carriage they executed.