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?

Yes, German courts usually interpret the similar provisions of the Montreal Convention and the Warsaw Convention 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?

Basically, German courts consider the Montreal Convention and the Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death, provided that these Conventions are applicable.

Definition of ‘carrier’

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

As per the interpretation of German courts, a carrier is the person or entity that promises the transportation of persons or goods. It is irrelevant whether the carrier undertakes the flight itself or whether it is even capable of carrying out the transportation with its own aircraft. The carrier can delegate the actual transportation.

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?

‘Accident’: German courts are not consistent in their interpretation. Mostly, a wider interpretation is used. An ‘accident’ is therefore a sudden damaging event from outside the usual operation.

‘Bodily injury’: as per German courts, a bodily injury can be any bodily harm. German courts only consider such problems as compensable if they have a bodily effect and can be classified as illness. It would, therefore, not be sufficient if the passenger states that he or she suffers fears or that he or she was in emotional distress, but these psychological issues must be of a severity to the effect that they are considered as an illness by a doctor. This is normally the case when the passenger actually undergoes psychotherapy because of the incident.

‘In the course of any of the operations of embarking or disembarking’: as per German courts, the term of embarking or disembarking is seen in light of whether and when the passenger the passenger faces risks and dangers that are imminent in air travel.

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?

‘No negligence’ defence: the carrier must prove that it and its staff have not set the cause for the damage. The carrier does not have to prove that it has undertaken all reasonable measures to avoid the damage despite it being caused by another person.

‘Reasonable measures’ defence: in Germany, the requirements regarding ‘reasonable measures’ are very strict. German courts consider an ex ante point of view and take into account what a carefully and reasonably acting air carrier would have done.

‘Wilful misconduct’: German courts apply a shifted burden of proof. Since the claimant is unable to prove any and all actions of the air carrier, it is sufficient that the claimant disputes that the air carrier has acted diligently. It is then up to the air carrier to prove its actions and to put forward how exactly the damage was caused.

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?

Under article 5 of Regulation (EC) No. 2027/97 of 9 October 1997 as amended by Regulation (EC) No. 889/2002 of 13 May 2002, the air carrier must make an adequate advance payment, in the case of death at least 16,000 special drawing rights (SDR) per passenger.

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?

Article 33 of the Montreal Convention

German courts respect the jurisdictions provided under article 33 of the Montreal Convention:

  • domicile of the carrier: the domicile of the carrier is where the carrier is based;
  • the air carrier’s principal place of business: this is where the main management of the air carrier is located;
  • the air carrier’s place of business through which the contract has been made: this can be the local office of the air carrier if the air ticket was bought there. It can also be an IATA travel agency;
  • place of destination: this can be the place of arrival but, in the case of a round trip, also the place of departure if this is also the final destination of the entire trip; and
  • place of residence of the passenger: the party that relies on this place of this as fifth jurisdiction has the burden of proof regarding the prerequisites thereof.
Article 28 of the Warsaw Convention

The jurisdictions under the Warsaw Convention are considered by German courts in the same way as the jurisdictions under the Montreal Convention. However, under the Warsaw Convention, the above-mentioned fifth jurisdiction does not exist.

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?

German courts respect the two-year limitation period under article 35 of the Montreal Convention and under article 29 of the Warsaw Convention.

It is not regarded as a ‘normal’ prescription period that can be suspended under certain circumstances but any claim is precluded if a legal action has not been filed within the two-year deadline.

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?

Under German legal practice both the contracting and the operating carrier can be held liable, individually and also jointly and severally. The contracting carrier can be held liable for the whole of the carriage and the operating carrier solely for the carriage that it performs. German courts respect article 40 of the Montreal Convention.