(Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia (Case C‑258/16)) 

This case is between an air carrier and an insurer, in respect of loss of items in a baggage which had been checked in with the air carrier and liability of the air carrier for damages resulting from the loss. The Court of Justice of the European Union (Third Chamber) considers the interpretation of Art. 31 of the Montreal Convention.

It was held that the passenger must make the complaint to the carrier in writing within the stipulated periods, failure of which may result in no action that may lie against the air carrier except for fraud, and that making the complaint is not subject to further substantive requirements.

Case Background

A passenger of Finnair Oyi (“Finnair”, an airline company), Ms Kristiina Mäkelä-Dermedesiotis, travelled from Spain (Málaga) to Finland (Helsinki).

On arrival in Helsinki on 1 November 2010, she found several items missing from her baggage which she had checked in with Finnair. On the same day, Ms Mäkelä-Dermedesiotis telephoned Finnair and notified its customer service of the loss. Finnair’s customer service representative recorded the lost items and their value onto Finnair’s electronic system.

On 3 November 2010, Ms Mäkelä-Dermedesiotis telephoned Finnair customer service again in order to obtain a certificate for her insurance company, Keskinäinen Vakuutusyhtiö Fennia (“Fennia”). Finnair issued her with a certificate of the declaration of loss.

Fennia compensated Ms Mäkelä-Dermedesiotis for the loss.

On 2 September 2011, having been subrogated to its insured customer’s claim, Fennia brought an action against Finnair before the Helsingin käräjäoikeus (District Court in Helsinki) in Finland, seeking reimbursement by Finnair.

Finnair contested admissibility of the action based on that Ms Mäkelä-Dermedesiotis failed to file a written complaint within the period of seven days following receipt of baggage as required in Art. 31 (2) of the Convention.

The Helsingin käräjäoikeus (District Court) found the matter for Finnair and dismissed the action. Fennia appealed against this judgment to the Helsingin hovioikeus (Court of Appeal, Helsinki, Finland).

The Helsingin hovioikeus (Court of Appeal) found that since the purpose of the declaration of loss issued by Finnair was “not sufficiently clear and unambiguous” for a passenger as consumer, Ms Mäkelä-Dermedesiotis had legitimate reason to believe that her timeous complaint by telephone which Finnair’s employee recorded in the air carrier’s electronic system would satisfy the requirement of a formal written complaint as required in Art. 31(2).

On 28 February 2014, the Helsingin hovioikeus (Court of Appeal) set aside the judgment of the Helsingin käräjäoikeus (District Court) and ordered Finnair to compensate Fennia.

Against this judgment, Finnair brought an appeal on a point of law before the Korkein oikeus (Supreme Court, Finland). In particular, Finnair claims that the Helsingin hovioikeus (Court of Appeal) misinterpreted Art. 31 of the Convention.

In these circumstances, the Korkein oikeus (Supreme Court) stayed the proceedings and referred to the Court of Justice of the European Union (Third Chamber) (the “Court”) for a preliminary ruling.

Court’s Decision

The Court decided on one preliminary issue and four questions:

  1. The Convention was part of the EU Law of carriage of passengers and their baggage by air. The Court therefore has jurisdiction to give preliminary ruling on the interpretation of the terms of the Convention, based on good faith in accordance with the ordinary meaning to give the terms in their context and in the light of its object and purpose as set out in Art. 31 of the Vienna Convention on the Law of Treaties 1969.
  2. The first ruling is that Article 31 (4) of the Montreal Convention 1999 must be interpreted in the light of Article 31 (2) and (3), as meaning that a complaint must be made in writing, given or dispatched to the carrier within the required time limit, and that where there is failure to do so no action may be brought against the air carrier.
  3. The second ruling is that the term “in writing” must be interpreted as referring to “any set of meaningful graphic signs, irrespective of whether they are handwritten, printed on paper, or recorded in electronic form”, pursuant to the Preamble to and Art. 31 of the Convention. Accordingly, a complaint recorded in the electronic information system of the air carrier must be regarded as having met the requirement of being in a written form as required in Art. 31 (3).
  4. The third ruling is that Art. 31 (2) and (3) of the Convention must be interpreted as not precluding the requirement of being in a written form from being regarded as that the requirement is fulfilled where, with the knowledge of the passenger, a representative of the air carrier records either on paper or electronically in the carrier’s information system the passenger’s declaration of loss, provided that the passenger at concern can check its accuracy and, where appropriate, amend supplement or replace its text before expiry of the stipulated time period.
  5. The fourth ruling is that the Convention does not subject making a complaint to further substantive requirements in addition to that of notifying the air carrier in writing within the stipulated periods that the checked baggage or cargo has not been delivered in good condition in accordance with the document of carriage or within the record preserved by other means.

Practical Lessons Learned

An air passenger who discovers the damage must at the latest within the required periods make a written complaint and send or dispatch it to the air carrier. If no complaint is made within the specific periods, no action may lie against the air carrier except for fraud.

The term “in writing” as stipulated in Art. 31(3) of the Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention 1999”) means “any set of meaningful graphic signs, irrespective of whether they are handwritten, printed on paper, or recorded in electronic form”. This includes information recorded in the information system of the air carrier.

Although it is required that a complaint must be made in writing, this requirement does not excessively limit the specific way used by the passenger to make the complaint, as long as the passenger remains identifiable as the person who has made the complaint. This is based on the protection of consumers’ interests in international air carriage and the principle of equitable balance of interests.

The passenger who is entitled to delivery of the baggage/cargo has exclusive responsibility to make the complaint; but s/he also has liberty to benefit from the assistance of other persons for the purpose of making the complaint. For instance, the assistance of the airline’s customer service representative would help record the complaint on the airline’s electronic system.

This original article was first published on LexisPSL’s Case Analysis on 16 April 2018.