Applicable treatiesMajor air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
In France, EU regulations apply concurrently with international conventions.
France signed and ratified the Warsaw Convention on 15 November 1932 and it entered into force on 13 February 1933. On 19 May 1959, France ratified the Hague Protocol of the Warsaw Convention, which entered into force on 1 August 1963.
The Guadalajara Supplementary Convention of 18 September 1961 also applies regarding international carriage by air performed by a person other than the contracting carrier, because France ratified it on 24 January 1964.
France also signed and ratified the Guatemala City Protocol of 8 March 1971.
The Tokyo Convention of 14 September 1963 on offences and certain other acts committed on board aircraft was ratified by France on 10 September 1970, and has been applicable since 10 December 1970.
France ratified two of the four protocols (1 and 2) of the Montreal Convention on 11 February 1982, and further ratified the Montreal Convention of 28 May 1999 for international carriage by air, which regulates the liability of air carriers regarding the death or injuries of passengers, damages to baggage and cargo or delays. The Montreal Convention entered into force on 28 June 2004.
On 15 December 2016, France ratified the Beijing Convention on the suppression of unlawful acts relating to international civil aviation, which entered into force on 1 July 2018.
Other conventions were signed, but not ratified by France, such as the Rome Convention of 7 October 1952.
The conventions are directly applicable in France once they have been duly ratified and published.
International carriage - liability for passenger injury or deathMontreal 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.
Domestic carriage - liability for passenger injury or deathGoverning laws
What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
Pursuant to article L. 6421-3 of the French Transport Code, the liability of an air carrier with a public transport operating licence is subject, in respect of the carriage of passengers and their baggage by air, to the provisions of Regulation (EC) No. 889/2002 of 13 May 2002 and to the provisions of the Montreal Convention. Article 1 of the Regulation (EC) No. 889/2002 expressly refers to the Montreal Convention as the law governing air carriage including domestic carriage.
Article L. 6421-4 of the French Transport Code sets out that gratuitous carriage operated by a carrier without a public transport operating licence is governed by the Warsaw Convention and any other convention modifying or supplementing it.Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
Since the carrier’s liability for domestic flights is also governed by the Montreal Convention, the conditions are the same as for international carriage.
Regarding gratuitous carriage operated by a carrier without a public transport licence, article L. 6421-4 of the French Transport Code provides that unless otherwise stipulated by agreement, the air carrier performing free carriage will be liable only if it is established that the damage was caused by a fault attributable to the carrier or its agents.Liability limits
Is there any limit of a carrier’s liability for personal injury or death?
For domestic flights outside the scope of article L. 6421-3 of the French Transport Code, article L. 6421-4 of the Code sets a limit of liability per passenger at €114,336. This limit does not apply in the case of wilful misconduct.Main defences
What are the main defences available to the air carrier?
For free carriage flights, the main defence for the air carrier would be to show the absence of fault. Otherwise, the defences are the same as the ones set in the Montreal and Warsaw Conventions.Damages
Is the air carrier’s liability for damages joint and several?
Under French law, an air carrier can be found liable with other parties. The court can order them jointly and severally to compensate the claimant.Rule for apportioning fault
What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?
If the fault of the person claiming compensation or the person from whom the right is derived caused in whole or in part the damage, French courts usually exonerate partly or totally the air carrier if the fault is linked to the damage (Cass 2nd Civ, 3 March 2016, No. 15-12.217).
Partial exoneration can also be obtained if the contributive negligence comes from minors or persons with reduced mental capacity.Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
Any action against an air carrier for injury or death must be filed within two years from the date of arrival or from the date the aircraft should have arrived or from the date the aircraft stopped.
This time limitation is applicable both to domestic flights in the scope of the Montreal Convention and to free domestic carriage pursuant to article L. 6422-5 of the French Transport Code.
It is interrupted by serving summons on the air carrier. It can also be suspended.
Third-party actionsSeeking recovery
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
If the air carrier has been summoned (but not found liable yet), it can bring a third-party action against another party that is potentially liable to involve it in the same proceedings. This mechanism is called ‘forced intervention’.
However, if the air carrier has already been found liable for the passenger’s injury or death and had to pay the compensation, it can bring a separate action against the third party that is potentially also liable to seek a contribution or a reimbursement of what it has paid.Time limits
What time limits apply?
The time limit will depend on the ground of the action the air carrier wants to bring. Several options must be considered:
- for claims based on contractual liability of the third party, the time limit is five years from the day the holder of a right knew or should have known the facts enabling him or her to exercise his or her right;
- for claims based on tortious liability of the third party, the time limit is five years from the day the holder of a right knew or should have known the facts enabling him or her to exercise his or her right;
- for claims based on liability for defective products, the time limit is twofold - namely, the victim can no longer sue the producer after 10 years from the date the product was put into circulation or if the damage occurs during this 10-year period, the time limit is three years as from the date the victim knew or should have known the damage, defect and identity of the producer; and
- for claims based on the warranty for hidden defects, the action must be brought within two years of the discovery of the defect.
Liability for ground damageApplicable laws
What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
As France has not ratified the Rome Convention (7 October 1952), the provisions of the French Transport Code (especially articles L. 6131-1 and L. 6131-2) should apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident (if French law is applicable according to Regulation (EC) No. 593/2008 for contractual obligations or Regulation (EC) No. 864/2007 for non-contractual obligations).Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
Pursuant to article L. 6131-2 of the French Transport Code, the operator of an aircraft will be automatically liable for ground damage caused by the aircraft or objects that come off it to a third party. Damage caused to persons on the ground bound by contract to the operator (passengers) is, however, outside the scope of this article.
Article L. 6131-1 of the French Transport Code specifies that in the event of a damage caused by one aircraft to another aircraft, the liability of the pilot and the aircraft operator is governed by the provisions set out in the Civil Code.Liability limits
Is there any limit of carriers’ liability for ground damage?
No statutory limit of carriers’ liability for ground damage is provided by French law.Main defences
What are the main defences available to the air carrier in a claim for damage caused on the ground?
Article L. 6131-2 of the French Transport Code expressly sets out that the liability of the operator can only be mitigated or excluded by proving the victim’s fault.
Liability for unruly passengers and terrorist eventsApplicable laws
What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
France ratified the Tokyo Convention of 14 September 1963 on Offences and Certain Other Acts Committed on Board Aircraft, which entered into force on 4 December 1969. It sets out the framework for the pilot in command prerogatives and the powers and obligations of the states. The Convention is supplemented in the European Union by the Annex to EC Regulation No. 859/2008 of 20 August 2008 and articles L. 6522-1 et seq of the French Transport Code determine, at national level, powers of the pilot in command and his or her crew.
In principle, pursuant to article 10 of the Tokyo Convention, the owner or operator of the aircraft will not be held responsible in any proceedings on account of the treatment undergone by the person against whom the actions were taken.
However, French courts ruled that when the liability of an air carrier is sought for damage caused by an unruly passenger or a terrorist event to another passenger, the Warsaw Convention (and by extension the Montreal Convention) applies (Cass 1st Civ, 16 February 1982, No. 80-17.009).Nature and conditions of liability
What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?
The nature and condition for an air carrier’s liability are those provided by articles 17 to 20 of the Montreal Convention.Liability limits
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
The limit of liability for injury or death caused by an unruly passenger or a terrorist event is set out in article 21 of the Montreal Convention.Main defences
What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?
Articles 20 and 21 of the Montreal Convention provide the main defences available to the air carrier in a such situation.
Liability for harm caused by dronesApplicable legislation
Summarise the laws or regulations related to the liability for injuries or damage caused by drones.
French law does not provide for specific rules regarding damages or injuries caused by drones, which are governed by the French Transport Code (namely article L. 6100-1).
Two situations are considered by the French Transport Code:
- when a drone collides with another aircraft, article L. 6131-1 of the French Transport Code should apply (which, in turn, refers to the French Civil Code). As a consequence, the victim seeking compensation should be able to show that the remote pilot or the operator committed a fault (pursuant to article 1240 and seq. of the French Civil Code);
- when the injury or the damage is caused on the ground, only the remote pilot should be liable, even in case of force majeure, except if the latter can demonstrate that the damage was partially or totally caused by the victim (Cass. Com., 2 October 2012, No.11-21.362).
Consumer protection and passenger rightsApplicable legislation
Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.
Several EU Regulations protect consumers before, during and after their flight.
Before travelling, French law (Decree of 10 April 2017 on price information for the provision of certain public passenger transport services) and UE law (Regulation (EC) No. 1008/2008, article 23) guarantee the possibility to compare services and prices.
Regulation (EU) No. 261/2004 protects all air passengers in the event of cancellation, flight delay and denied boarding. Airlines must compensate passengers when the flight is cancelled or is more than three hours late. Airlines must also offer assistance to passengers.
If the flight was oversold, the passenger who is refused embarkation must be rerouted, provided with food and accommodation and economically compensated.
The rights of disabled or reduced mobility air passengers are also regulated at European level, by Regulation (EC) No. 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.
Liability of government entities providing services to carriersRelevant laws
What laws apply to the liability of the government entities that provide services to the air carrier?
The liability of the government entities or representatives providing services to the air carrier, such as the airport authorities, is governed by French ordinary law (Civil Code, Aviation Code and Transport Code, among others) and can be sought before administrative courts.Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
The liability of government and of its representatives can be sought when it is proven that they have committed a fault or a wrongful act or negligence and that damage resulted from this fault (ie, requirement of a causal link).Liability limits
Are there any limitations to seeking recovery from the government entity?
French law does not provide any limitations to seek recovery from the government entity.
Criminal proceedingsResponsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Pursuant to article 121-2 of the French Criminal Code, legal entities can be held criminally responsible. Therefore, the air carrier can face criminal proceedings if the offence is committed on the air carrier’s behalf by its representatives.
An air carrier may be held criminally responsible for an aviation accident if it is proven that the latter results from a negligence, an endangerment or a breach of any safety rule on the carrier’s part.Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
When the public prosecutor decides to take action against the air carrier, and that the passenger or his or her representatives claimed compensation before civil courts, the civil proceedings regarding damages are suspended (article 4 of the Code of Criminal Procedure).
However, if the civil claim does not concern damage compensation, the suspension is not automatic and it is possible for the air carrier to request it to the judge who can decide whether to grant it or not.Compensation
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
In France, in principle, it is possible to make a civil claim for damages in the context of criminal proceedings before a criminal court (article 3 of the Code of Criminal Procedure).
However, article 2 of the Code gives jurisdiction to a criminal court to rule on a civil action for damages resulting from a criminal offence (felony, misdemeanour, petty offence, among others).
Criminal courts thus have no jurisdiction to rule on passengers’ compensation on the basis of the Warsaw or Montreal Conventions if the damage does not result from a criminal offence.
The claim for compensation by passengers or their representatives based on the Warsaw or the Montreal Conventions must therefore be brought before civil courts (Cass Crim, 3 December 1969, No. 65-93.055; CA Basse-Terre, 29 April 2008, Rev droit des transports, No. 7-8, July 2008, comm 154; Cass. Crim., 9 January 1975, No.73-92.375).
In other words, given its specificities, the action of the victim seeking compensation after an air flight accident does not fall within the jurisdiction of French criminal courts.
Effect of carrier's conditions of carriage and tariffsLiability
What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?
Under French law, the parties are free to enter into contract and to determine its content (principle of autonomy enshrined in article 1103 of the French Civil Code).
However, the conditions set out in international conventions (such as Warsaw and Montreal Conventions) and regulations (such as Regulation EC No. 261/2004) prevail over contractual terms.
Consumers are also protected by several provisions of the French Consumer Code, in particular to ensure that professionals duly inform them about the tariffs and their rights.
Accordingly, if the conditions of carriage comply with the regulations in force, they are then binding on the parties.
What damages are recoverable for the personal injury of a passenger?
Traditionally, French courts recognise three main types of damages: bodily injury, moral damage and property damage.
In France, the principle is the one of full compensation of the damage, which implies that the air carrier found liable for the damage must compensate the victim for his or her ‘whole but sole’ loss.
Punitive damages are forbidden as they would lead to the enrichment of the victim, which is contrary to the principle of full compensation. The victim has no duty to mitigate the damage. There is, in principle, no limitation on damages (except for the limitations provided by international conventions, such as in the Montreal Convention).
French courts tend to use the Dintilhac chart, which provides some guidelines on the compensable heads of damage.
Under French law, the passenger, his or her relatives (indirect victims), the victim’s beneficiaries (in the case of death) or any subrogated persons (for instance, the Guarantee Found for the Victims of Acts of Terrorism and Other Offences) have standing to claim.
Experts may also be required to assess economically the damage.
What damages are recoverable for the death of a passenger?
Punitive damages are not allowed in France and there is no limitation on damages.
For the death of a passenger, it is possible to seek the recovery of funeral expenses and various expenses related to the economic consequences of the death of the direct victim. The loss of income of the relatives is also compensated and is calculated based on the age and income of the deceased.
The moral damage suffered by some relatives at the sight of the victim’s suffering and loss is also compensated. The amounts awarded for moral damage vary according to the degree of kinship, and whether the victim lived with the relative. In practice, the moral damage of the closest relatives is almost automatically compensated but the amount awarded can vary from one court to another.
Since a 2007 decision, the ‘loss of opportunity to have one’s life extended in accordance with the life expectancy of a person of his or her age’ is now recoverable under certain conditions and is a right transmitted to the heirs.
French courts also compensate the prejudice of death anxiety. It is intended to compensate the mental suffering caused by a person’s awareness of the imminence of his or her own death before dying or the inevitability of the accident. This prejudice may also be included in the compensation paid to the heirs (Cass Crim, 23 October 2012, No. 11-83.770; CA Bordeaux, 27 June 2017, No. 16/00225).
Accident investigation and family assistanceInvestigatory authority
Who is responsible in your state for investigating aviation accidents?
When a major accident occurs in France, two investigations are conducted. A security investigation is conducted by the Bureau of Enquiry and Analysis for Civil Aviation Safety (BEA) in parallel with the judicial investigation conducted by the Air Transport Gendarmerie (GTA), in order to establish criminal responsibilities.
The BEA leads the technical research and determine the causes of the accident, with the sole objective of ‘improving air safety’. The BEA usually issues a first preliminary report within 30 days of the start of its investigation and then sends its recommendations to the authorities, companies and manufacturers. It has no coercive power.
The GTA ensures safety and security in airport areas but also carries out very specific judicial investigations. The GTA has judicial police powers to investigate air accidents in France and abroad when French passengers are fatally injured.
Where an accident has led to bodily injuries or fatalities, criminal investigations are conducted by the GTA and court-appointed experts to determine the cause of the accident, under the supervision of the investigating judge.Disclosure restrictions
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
BEA reports are public and are published on the BEA website (www.bea.aero).
However, when criminal investigations are ordered by a judge, the report issued by the expert is not public and cannot be disclosed.
Only the judge and the parties to the criminal proceedings have access to the criminal file. They must respect the secrecy of criminal investigations.Relevant post-accident assistance laws
Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?
Pursuant to article 21 of Regulation (EU) No. 996/2010 of 20 October 2010, member states should ensure that all airlines established in their territory have a plan for the assistance to the victims of civil aviation accidents and their relatives. Those plans must include the psychological support of the victims of aviation accidents and of their relatives and allow the airlines to react to major accidents.
Insurance requirementsMandatory requirements
Are there mandatory insurance requirements for air carriers?
Air carriers and, when so required, aircraft operators must show that they comply with insurance requirements by providing the competent authorities of the EU country concerned with an insurance certificate or other evidence of valid insurance.
Insurance requirements for air carriers are set in the Montreal Convention (article 50) and in Regulation (EU) 785/2004 regarding insurance requirements for air carrier and operators. The Regulation requires both commercial air carriers and general aviation aircraft operators to be insured in respect of passengers, baggage, cargo and third parties.
For liability in respect of passengers, the minimum insurance cover is 250,000 SDR per passenger. However, in respect of non-commercial operations by aircraft with a on the maximum take-off weight (MTOM) of 2,700 kg or less, EU countries may set a lower level of minimum insurance cover, but not below 100,000 SDR per passenger.
For liability in respect of baggage, the minimum insurance cover must be 1,131 SDR per passenger in commercial operations (which should be increased to 1,288 SDR per passenger as per the revised limits of the Montreal Convention, which should come into force on 28 December 2019, unless a majority of member states disagree by 30 September 2019).
For liability in respect of cargo, the minimum insurance cover must be 19 SDR per kilogram in commercial operations (which should be increased to 22 SDR as per the revised limits of the Montreal Convention, which should apply as from 28 December 2019, unless a majority of member states disagree by 30 September 2019).
The minimum insurance cover per accident and per aircraft depends on the MTOM of the aircraft. It can vary between 750,000 SDR and 7 million SDR.
Litigation procedureCourt structure
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
Aviation liability claims and appeal are held before civil courts. There is no specific jurisdictions for aviation liability claims.
Pursuant to the Warsaw and Montreal Conventions, any claim made against an air carrier based on those Conventions must be brought before civil courts only if the damage does not result from a criminal offence.
In France, the courts’ jurisdiction depends on the nature of the claim (civil or commercial) and of the amount claimed (more or less than €10,000). However, Decree No. 2019-912, which will enter into force on 1 January 2020, abolishes the quantum rule and merges all the first instance civil courts into one.
An appeal is possible before the Court of Appeal of the district (save for decisions ruling on small claims for an amount lower than €4,000).
It is also possible to challenge a decision issued by the Court of Appeal before the French Supreme Court; however, this Court only rules on the correct application of the law and not on the facts.Allowable discovery
What is the nature and extent of allowable discovery/disclosure?
There is no discovery process in France.
Under French law, there is no obligation made on the parties to disclose documents or categories of documents since everyone is supposed to contribute to establish the truth.
A party can refuse to disclose a document covered by business secrecy and the court assesses whether the refusal is legitimate or not.
If a party, without legitimate reason, evades that obligation when it has been legally required, the court have the power to order or facilitate the disclosure of evidence and to order a periodic penalty payment or a fine (article 10 of the French Civil Code).
In criminal matters, search warrants can be issued.Evidence
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
Pursuant to article 145 of the French Civil Procedure Code, if there is a legitimate reason to preserve or to establish, before any legal proceedings, the evidence of the facts upon which the resolution of the dispute depends, parties may request the judge to order specific measures.
The judge must assess the proportionality of the requested measure with the breach of the party’s business confidentiality (Cass 1st Civ, 22 June 2017, FS-P+B, No 15-27.845 - this decision was enshrined by Law No. 2 018-670 of 30 July 2018 and its application Decree No. 2018-1126 of 11 December 2018, now article R. 152-1 of the French Commercial Code).Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
In France, the unsuccessful party usually bears its legal costs and the costs of the winning party. Costs include, among others, the fees and taxes, the costs of translation, then expert fees but do not include attorneys’ fees. In order to recover attorneys’ fees, the winning party has to request it to the judge who has discretion to grant it by taking into consideration the rules of equity and the financial situation of the parties (article 700 of the French Procedure Code). However, those costs are almost never recovered in full.
Judgments and settlementPre and post-judgment Interest
Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
Before any proceedings, a creditor must send a formal notice to his or her debtor. These acts will allow the interests to start running from the day it was sent.
The interest rate is set at least once a year by decree. For the second half of 2019, the rate was set at 3.26 per cent when the claimant is the natural person and at 0.87 per cent if the claimant is a professional. To calculate the penalty, it is necessary to multiply the amount due by the number of days in arrears and the applicable legal interest rate over the period. The result is divided by 100 times the number of days in the year.Settlements
Is court approval required for settlements?
The court’s approval is not required to settle a dispute (except when one of the parties is put under guardianship). However, it is possible to ask the court to approve a settlement to make it enforceable.
What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?
Under French law, a settlement terminates a dispute that has arisen between the parties or prevents a dispute. The settlement prevents the parties from initiating or continuing legal proceedings between them for the same purpose.
It is, however, necessary to measure the scope of a settlement signed between two parties with regard to the third party.
The terms of the settlement set the scope of the parties’ obligations and renunciations.
It is, in principle, impossible for the victim to seek contribution or indemnity from another person or entity due to the res judicata authority attached to the settlement. It means that if the victim’s damage is compensated in its entirety and permanently, he or she cannot seek any other contribution from another party.
However, as indicated above (see question 37), the principle is the one of full compensation of the damage. It implies that if the victim has not obtained full compensation of the damage (or if the worsening of the state has resulted in further damage), he or she is entitled to seek contribution from another person or entity, but this possibility must be stipulated in the settlement.
Furthermore, the party that settled with the victim can be subrogated into the victim’s rights and is, therefore, entitled to bring an action against any (other) liable party, if the victim has been fully compensated and if the settlement provides for it.
Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?
There are no specific financial sanctions or laws to consider before paying a judgment or settlement for air carriers or its insurers in France.
If the air carrier or its insurer is about to pay an indemnity pursuant to a court decision, it must ensure that the amount paid includes the interest ordered.
Updates and TrendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?Key developments of the past year51 What were the key cases, decisions, judgments and policy and legislative developments of the past year?
No general trend stands out from French case law in 2019, but a couple of decisions are worth commenting on.
Toulouse Court of Appeal, 7 March 2019, No. 18/05005: in this case, the passenger booked a flight from Toulouse (France) to Dakar (Senegal). At the arrival in Dakar, the passenger’s wheelchair had disappeared. The passenger therefore brought an action against the air carrier to obtain compensation for its damage before the Toulouse District Court, where the company had a branch office. The latter argued that the District Court of Toulouse had no jurisdiction based on article 28 of the Warsaw Convention. The passenger sustained that she had brought her action before the court of the domicile of the airline, pursuant to the ‘main stations’ theory, which allows the claimant to summon a legal entity where it is established, namely before the court within which jurisdiction it has a branch. The Toulouse Court of Appeal dismisses this argument, ruling that the Warsaw Convention lays down an compulsory rule of direct jurisdiction, which prevents the claimant from invoking French case law.
Cass. 2nd Civ., 18 April 2019, No. 18-15759: the French Supreme Court ruled that Law No. 85-677 (called the Badinter law) should apply in the event of a collision on an airport tarmac between an aircraft in motion and a parked land motor vehicle. In this case, an aircraft had moved because of the ice and had struck a runway tractor which sole function was to move on the airport area various equipment, such as generators or baggage trucks, which are attached to it and from which it can be dissociated.
The application of the Badinter Law could impede the application of the conventional limits and exclusions of compensation usually stipulated in standard contracts concluded between air carriers and ground handling agents, such as the Standard Ground Handling Agreement.
The author would like to thank Chloe Rezlan for her contribution to the chapter.