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?

There is only limited case law on these Conventions in the Netherlands. In the few cases available, similar provisions are interpreted 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?

There is no case law is available on this. The liability of Community air carriers (these are air carriers with a valid operating licence granted by an EU member state) for passenger injury and death is also governed by Regulation (EC) No. 2027/97, as amended by Regulation (EC) No. 889/2002. Pursuant to this Regulation, the liability of a Community air carrier in respect of passengers and their baggage is governed by all provisions of the Montreal Convention relevant to such liability. Also, this Regulation provides for additional obligations on the part of the air carrier in case of passenger injury or death (such as a minimum advance payment in case of death of a passenger).

Definition of ‘carrier’

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

Both the actual and the contractual carrier are considered to be a carrier under the Conventions. There has been limited discussion on this topic in the Netherlands. There is one judgment by the Amsterdam Court of Appeal in which the claim by a ground handler to invoke the Warsaw Convention to defend a claim by a carrier was denied.

Also, the Dutch Supreme Court decided on a case in 1992 that was subject to the Warsaw Convention and concerned a cargo claim. In this matter, cargo interests claimed that there can only be successive carriage if this has been explicitly agreed between the parties and if this is duly noted in the airway bill. The Supreme Court rejected this argument and held that successive carriage can also take place if this is foreseen by the parties when concluding the agreement, even though the names of the successive carriers are not yet known at that time. It was up to cargo interests to prove that sub-carriage took place instead of successive carriage.

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?

There is not a lot of case law in the Netherlands on this. However, the following has been held by Dutch courts.

Accident

Dutch courts agree that the term ‘accident’ requires an autonomous interpretation based on the Conventions. Therefore, recently, some Dutch courts followed the US Supreme Court’s interpretation in Air France v Saks that liability arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. In addition, in some judgments, the courts ruled that a connection between the incident and the air transport has to be proven to constitute liability of the air carrier. In other cases, however, this latter requirement has been mitigated.

In a case where a passenger stated to have suffered injuries due to an allergic reaction that, according to the passenger, was caused by food served on board the flight, the Amsterdam Court of Appeal held that the passenger must prove that the relevant meal contained the alleged allergens and that the passenger ate this meal. Also, the passenger had to prove that the cabin attendant who served the meal went through the menu with the passenger and confirmed to him that he could safely eat the meal, despite his allergies.

Bodily injury

No judgments have been rendered by Dutch courts on this condition.

In the course of any of the operations of embarking or disembarking

No judgments have been rendered by Dutch courts on this condition.

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?

The following has been decided in the few judgments rendered by Dutch courts on these issues.

The ‘no-negligence’ defence (article 21, Montreal Convention)

In a case where a passenger suffered injury owing to baggage falling from an overhead bin, the Amsterdam Court of Appeal decided that the airline provided insufficient substantiation of its ‘no negligence’ defence and held that the airline should at least have drafted an incident report showing the size and weight of the relevant baggage. Therefore, it could not be excluded that the airline should have taken the possibility of such an incident into account and should have taken precautionary measures, such as refusing the baggage or assisting in putting the baggage in the overhead bin.

The ‘all reasonable measures’ defence (article 20, Warsaw Convention)

A Dutch court held that for an airline to be able to invoke this defence, it must apply such measures that are reasonably available to prevent the incident and to avoid the damage. The court accepted the airline’s defence in this case where a passenger suffered whiplash during turbulence. According to the court, the carrier took all reasonable measures by delaying the flight and warning the passengers of possible turbulence and by advising them to wear their seatbelts at all times during the flight.

The ‘wilful misconduct’ standard (article 25, Warsaw Convention)

In a case regarding theft of valuable goods during carriage by air, a Dutch court held that the air carrier was obliged to provide all relevant information regarding the handling of those goods to allow the claimant to substantiate its claim that there was wilful misconduct on the part of the air carrier. According to the court, in order for this claim to succeed, the claimant must prove that the carrier or its personnel acted recklessly while being conscious that damage would probably result from those actions. This implies a subjective standard. Also, in other cases regarding damaged or lost cargo, the Dutch courts assessed the claims based on all the circumstances of the matter. There are no judgments on this published regarding personal injury or death of passengers.

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?

Article 5 of EU Regulation 2027/97, as amended by EU Regulation 889/2002, holds that a Community air carrier should without delay and in any event no later than 15 days after the identity of the natural person entitled to compensation has been established, make such advance payments as may be required to meet immediate economic needs on a basis proportional to the hardship suffered. In the event of death of a passenger, such an advance payment should not be less than the equivalent in euro of 16,000 special drawing rights (SDR) per passenger. There is no case law on this.

This Regulation only applies to Community air carriers (see question 3). In case of an aircraft accident where no Community air carrier is involved, Dutch law does not provide for the requirement that an advance payment is made to injured passengers or the family members of deceased passengers following an aircraft accident. However, in general, if such a claim is brought before a Dutch court, a court may allow a claim for an advance payment if liability is not disputed and if such an advance payment is reasonable in view of the damage. This will depend on the specific circumstances of the case.

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?

The following has been decided in only a few judgments rendered by Dutch courts on these issues.

Domicile of the carrier

No case law on this jurisdiction under the Conventions is available. Under Dutch law, the domicile of the carrier would be the legal residence of the carrier. If there is no legal residence, the actual place of business suffices.

Principal place of business of the carrier

No case law on this jurisdiction under the Conventions is available. Under Dutch law, the principal place of business is where the legal entity is situated according to legal regulations or its statutes.

Place of business of the carrier through which the contract has been made

In a matter regarding a cargo claim where the Warsaw Convention applied, the Amsterdam Court of Appeal ruled that this place of business does not necessarily have to be able to conclude the agreement by itself, but that it is sufficient if it would appear that the relevant office conducts all negotiations and confirms the agreement. Also in a matter regarding a cargo claim, the Amsterdam Court of Appeal ruled that an independent agency that acts on behalf of several airlines cannot be considered a ‘place of business through which the contract has been made’ under the Warsaw Convention.

The place of destination

The place of destination is the agreed place of destination between parties under the contract of carriage according to the Amsterdam Court of Appeal. In a matter regarding a cargo claim where goods were stolen during road carriage, which was subsequent to the carriage by air, the court decided that this carriage by road should be regarded as carriage by air and that the place of destination of the carriage is the final destination of the goods (regardless of the manner by which they were delivered there).

Fifth jurisdiction created by article 33(2) Montreal Convention

No case law on this jurisdiction under the Conventions is available.

Forum non conveniens

There is no Dutch case law on the question whether the Dutch courts would apply the forum non conveniens doctrine to a Montreal Convention or Warsaw Convention action. However, the forum non conveniens doctrine is not commonly used in the Netherlands. The European Court of Justice held that the forum non conveniens doctrine is incompatible with the Lugano Convention. Therefore, it can be presumed that the doctrine would not be applied by Dutch courts.

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?

The limitation period is not subject to tolling and, in general, is held to be absolute. However, in a cargo case (subject to the Warsaw Convention) where parties had agreed to an extension of the two-year limitation period, a Dutch court held that invoking the limitation period despite confirming this extension, was unacceptable under the principles of reasonableness and fairness. In that matter, the two-year limitation period of the Warsaw Convention could not be invoked.

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?

No case law is available on this subject.