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?

French courts interpret the similar provisions of the Montreal and the Warsaw 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?

French courts always apply the Montreal Convention and the Warsaw Convention when the air carrier liability is triggered by passengers in the case of injury or death occurring on board, or while embarking or disembarking.

Regarding the rules that they expressly provide, their application is exclusive of ordinary contract law, and the French Supreme Court (Cour de Cassation) ensures that claimants do not rely both on the provisions set by the Conventions, and by French contract law (French Supreme Court, 13 March 2013, No. 09-72.962).

However, if an accident does not occur on board or while embarking or disembarking, ordinary French law will apply. As an example, article L. 6421-4 of the French Transport Code applies to gratuitous domestic carriage.

Otherwise, French contractual law sets out the principle of the contractual liability of the carrier who has an obligation of safety towards passengers (since 1911: Cass Civ, 21 November 1911, D. 1913, 1, p. 249). The case law subsequently gave a very broad scope to this contractual safety obligation, applying it not only to accidents occurring during the transport itself, but also to the earlier and later phases.

Definition of ‘carrier’

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

French courts interpret the concept of a ‘carrier’ on the basis of the Montreal Convention. Ground handling agents or other service providers are not ‘carriers’ according to French courts. However, they can, under certain conditions, benefit from the conditions and limitations of liability of the carrier.

The Montreal Convention (article 30) added the expression ‘or agent’ to the term ‘servant’, found in an abundant body of case law relating to the status of a handling agent and seeking liability on both a contractual and a tortious basis, thus extending its conditions and limitations to this category of transport operator and clarifying its regime.

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 French case law, an ‘accident’ under article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention can be defined as: ‘an unforeseen and sudden event that is external to the passenger’. Therefore, an incident should not be considered as an accident when the injury or death is solely related to a pre-existing medical condition and is the result of the victim’s own reactions to the normal and predictable operation of the aeroplane. The European Court of Justice (ECJ) has recently been asked to provide a clarification on the notion of ‘accident’ (ECJ, 26 September 2019, Case C-532/18).

In France, airlines often tend to compensate victims automatically in the event of an air accident, without even waiting for them or their representatives to take legal action. Thus, French courts have still not had the opportunity to rule on the question of what is meant by the notion of ‘bodily injury’ - namely, whether it only includes physical harm or if it also includes psychological harm.

However, the French Supreme Court usually considers that a psychological disorder can be assimilated to a bodily injury (Cass Soc, 27 January 1961: Bull civ 1961, No. 134) and recognises both the psychological and the moral prejudice as being compensable (Cass 2nd Civ, 18 January 2018, No. 16-28392).

‘In the course of any of the operations of embarking or disembarking’ is interpreted as beginning when the passenger in the care of the carrier is taken from the airport to the aircraft prior to take off, and ending when the passenger has again returned to the airport from the aircraft after set down (CA Paris, 29 October 1992; CA Paris, 5 March 1999: RFD aérien 1999, p. 22).

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?

French courts seem to consider that the ‘no-negligence’ defence set out in article 21 of the Montreal Convention can be usefully raised by the carrier if it can prove the cause of the accident and that the carrier took all possible measures to prevent it. The French Supreme Court ruled that as long as the investigation into the cause of the accident is ongoing, no interim payment exceeding 100,000 special drawing rights (SDR) can be awarded in summary proceedings (Cass 1st Civ, 15 January 2014, No. 11-21.394).

In France, judges interpret the ‘all reasonable measures’ defence set in article 20 of the Montreal Convention very severely. They adopt a strict interpretation of what a reasonable measure is and tend to condemn the carrier, even if it proves its diligence both in terms of the airworthiness of the aircraft and the expertise of the cabin crew (CA Paris, 12 December 1961: JCP 1962, II: in this case the Paris court of appeal condemned the carrier for not having taken ‘all measures directly and immediately related to the accident’). Most of the time, the carrier will only be able to exonerate itself by proving that the accident was caused by an event qualified as force majeure (ie, unforeseeable, external and inevitable).

The wilful misconduct set in article 25 of the Warsaw Convention is the act or omission done recklessly and with the knowledge that a damage is likely to result from it.

Two doctrinal concepts were conflicting on how to assess the awareness of the probability of harm in the notion of inexcusable fault. The first, called ‘subjective’, consisted in assessing whether the carrier (or its servants) was aware that a damage would result from its attitude; the second, called ‘objective’, consisted of assessing whether the carrier, acting as it did, should have been aware of its recklessness and of the probability of the damage.

For a better compensation of victims, the French Supreme Court has chosen to apply an objective standard - namely, the one of the reasonable conduct.

Where a wilful misconduct is characterised, it excludes the application of the limitation of liability.

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 of 13 May 2002 on air carrier liability in the event of accidents is directly applicable. Pursuant to article 1(7), the advance payment must be made without delay and within a maximum period of 15 days after identification of the natural person entitled to compensation. In the event of death, the advance may not be less than 16,000 SDR per passenger. Such advance payments are required to meet immediate economic needs on a basis proportional to the hardship suffered.

An advance payment does not constitute an acknowledgement of liability.

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 ‘domicile of the carrier’ is the place where the carrier has its office registered.

The ‘principal place of business of the carrier’ is not expressly defined by French law and merely corresponds to its place of business, where its main activities are carried out. However, the domicile must correspond to the main place of business and therefore the two criteria are merged.

The ‘place of business of the carrier through which the contract has been made’ is separate from the domicile. It must have the capacity of performing legal acts (for instance, selling a ticket) and be the one that entered into the contract with the passenger. The determination of the place of business through which the contract has been concluded is made on a case-by-case basis and may in particular be deducted from the address appearing on the invoices issued by the carrier (CA Paris, 2 June 2015, No. 15/04938: BTL 2015, p. 3556).

When the ‘jurisdiction before the court at the place of destination’ is competent, the determination of the place of destination can only result from the agreement of the parties, which is normally established by the ticket or document of carriage. The ticket must comply with a certain formalism.

According to French case law, if the document of carriage bears the mention ‘Paris-Orly’ and if it is constant that the airline had to transport the passenger, not to any point in Paris but only to the Orly airport, this airport is the place of destination (Cass 1st Civ, 16 April 1975, Bull civ I, No. 135). If the journey is made by two or more air carriers, French courts, pursuant to article 30 of the Warsaw Convention, tend to consider that there are several contracts (CA Paris, 27 March 1962, RFD aérien 1962.179).

French case law does not provide any definition of the ‘fifth jurisdiction’ set in article 33(2) of the Montreal Convention, namely the jurisdiction of the victim’s main residence.

The forum non conveniens doctrine is not admitted by French 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 two-year period of limitations set in the Montreal and Warsaw Conventions can either be interrupted (for instance, by a court summons: article 2241 of the French Procedure Code) or suspended (notably during the minority of the claimant, pursuant to article 2252 of the French Civil Code).

In a 24 May 2018 decision, the French Supreme Court (Cour de cassation) ruled that the two-year limitation period provided by the Warsaw Convention should not apply to proceedings aimed at demonstrating the aggravation of the claimants’ damage (Cass. 1st Civ., 24 May 2018, No. 16-26.200).

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?

The Montreal Convention distinguishes between successive carriage (article 36), combined carriage (article 38) and carriage by air performed by a person other than the contracting carrier (articles 39 to 48).

In the case of successive carriage, the passenger or his or her representative can take action only against the carrier that performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has taken responsibility for the whole journey.

In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of the Montreal Convention only apply to the carriage by air.

Pursuant to Chapter 5 of the Montreal Convention, when the carriage is performed by the operating carrier and not the contractual carrier, an action for damages may be brought, at the option of the plaintiff, against the operating carrier or the contracting carrier, or against both together or separately.

If the action is brought against only one of those carriers, that carrier will have the right to summon the other carrier to join the proceedings (article 331 of the French Procedure Code).

Under French law, when the operating air carrier is not the contractual air carrier, the latter should provide passengers with information on the identity of the operating air carrier pursuant to article 11 of the Regulation (EC) No. 2111/2005. If the contracting carrier fails to inform the passengers, it can be ordered to pay a penalty.