Values and Challenges to the
Worldwide Warsaw Regime on Air
Carrier Liability
Warsaw 24 October 2014
Maylis Casati-Ollier
Which uniformity?
Convention pour l’Unification de Certaines Règles Relatives au Transport Aérien International,
Signée à Varsovie, le 12 Octobre 1929.
(152 States Parties)
Convention for the Unification of Certain Rules for
International Carriage by Air,
Montréal on 28 May 1999.
(108 States Parties)
The lack of uniformity started with :
A)
Other international conventions
The consequences of the 1944 Chicago Convention and in particular annex 13.
The 1955 Hague Protocol.
To an extent, the 1961 Guadalajara Convention.
B) Court decisions with different approaches on :
1 ”déchéance” versus “prescription”
2 “objective or subjective test” for willful misconduct
3 scope and extent of jurisdiction rules.
1
Déchéance/Limitation period
Under French law :
Prescription:
Prescription is not a rule of procedure but part of substantive law: it is governed by the civil code articles 2219 et seq. The right [of claim] is
extinguished if not exercised within a certain amount of time.
Prescriptions can be suspended or extended.
Déchéance:
“Déchéance” (deprivation/ forfeiture) is a sanction for a failure to comply with rules and or time limits. The preexisting rights are lost for the
future, The cases where déchéance exists are either (i) a faulty behavior or (ii) a failure to act in circumstances where the right should not be
asserted exercised forever. It may be waived but not extended or suspended.
In procedural terms there are “délai de prescription” and “délai préfix”.
Despite the clear wording of article 29 of the Warsaw convention and the preparatory works.
L’action en responsabilité doit être intentée, sous peine de déchéance, dans le délai de deux ans à compter de l’arrivée à destination ou du jour
où l’aéronef aurait dû arriver, ou de l’arrêt du transport.
Le mode de calcul du délai est déterminé par la loi du tribunal saisi.
The French Cour de cassation decided to treat it as a prescription.
2
Déchéance/Limitation period
French interpretation of article 29 of the Warsaw Convention concerning the limitation of actions:
Cour de cassation, 1st Civil Chamber, 2 March 1971:
Les termes “sous peine de déchéance” n’impriment pas nécessairement par eux-mêmes, un caractère préfix au délai en
cause, et à défaut de tout autre élément, la règle générale posée par l’article 2252 du code civil doit recevoir application.
The court looked at the convention itself, ignored the preparatory works and held that , the word « déchéance » meant
« prescription » since nothing in the text convention itself prohibited it.
Cour de cassation, Plenary assembly, 14 January 1977:
‘If the 12 October 1929 Warsaw Convention (…) provides that the action for damages shall be brought within two years,
under the penalty of forfeiture, there is no express provision [therein] whereby ,by derogation to principles of French
domestic law, this period may not being suspended or extended.
3
Déchéance/Limitation period
The French version of article 35 of the Montreal convention is identical to that of article 29 of the Warsaw
convention.
The approach will remain the same.
Interestingly, filing before a court which has no jurisdiction interrupts the running of the limitation period.
The current main issue is whether the filing of a constitution de partie civile in a criminal action interrupts the running
of the period or not. Usually the claim is filed against X rather than the air carrier and in a number of cases there is
no claim for damages at the outset.
Strangely, the adoption of the Montreal convention did not deter plaintiffs from being a party to the criminal action.
On the contrary. However the length of the administrative enquiry and of the criminal enquiry continue to affect the
length of the proceedings:
Cassation 1st civil chamber, 15 January 2014, Yemenia cases
While an investigation is underway in order to determine the causes of the accident, the obligation of the air carrier
above the 100,000 SDRs remains in dispute.
4
Jurisdiction
Round trip
Under the Warsaw convention, in a large number of instances, French courts unlike other courts, have looked at the place
of destination of flight rather than the full round trip to decide that they had jurisdiction.
Whether this will remain the case under the Montreal convention remains to be seen.
Recent examples :
Cassation 1st civil Chamber 21 November 2012 delay case:
Trip Paris Annaba Paris on Air Algérie governed by the Warsaw Convention but the issue submitted was focusing on the
European Regulation.
Cassation 1st civil chamber 15 January 2014 alleged injury:
Trip Paris Algiers Paris on a French carrier.
Though all parties accepted that Montreal applied, the court appeared to think that the place of destination was Algiers
and applied the Warsaw Convention rather than Montreal.
However in the Yemenia cases Cassation 1st civil chamber 15 January 2014
The Cour de Cassation did accept the parties approach of the round trip to apply the Montreal Convention.
5
Jurisdiction
Direct jurisdiction, Warsaw Convention, art. 28
Multiple defendants do not permit to avoid Warsaw convention jurisdiction rules
Cour de cassation, 1st Civil chamber, 11 July 2006, Kenya Airways:
Article 28 §1 of the Warsaw convention provides a direct, mandatory jurisdiction.
Cour de Cassation, 1st Civil chamber, 12 November 2009, Gulf Air:
“En exigeant de manière exclusive, que l’action contre le transporteur aérien soit portée devant certains tribunaux, le
texte de l’article 28 de la Convention de Varsovie écarte nécessairement qu’une autre juridiction puisse être saisie.”
By requiring an exclusive manner that the action against the air carrier be brought before certain courts, the text of article
18 of the Warsaw Convention necessarily excludes that another court may be seized.
In both cases an attempt had been made to claim against the air carrier in Toulouse France and jointly against the
aircraft manufacturer.
Jurisdiction of French court was sought solely on the ground of related actions against multiple defendants.
The Cour de cassation prohibits jurisdiction based on any other rules than those contained in the convention itself.
This principle remains in force with MC99.
6
Choice of the Parties
From Flash to WCA
Flash case
The plaintiffs sued the manufacturers in the US. A forum non conveniens order sent the plaintiffs to France where they had
filed a separate action against the air carrier under the Warsaw Convention.
Upon filing against the manufacturers in France, plaintiffs challenged the jurisdiction of French courts over their case
against the manufacturers and fought the consolidation of the case with the case against the air carrier. The lower court
accepted jurisdiction. The court of appeal did not. The Cour de cassation quashed the court of appeal judgment on a
purely procedural point (invalid appeal).
West Caribbean Airways case
Mirror. The plaintiffs sued the air carriers in the US under the Montreal Convention. A forum non conveniens order sent
the plaintiffs to France (place of destination of the trip) where they had filed a separate action against the manufacturers.
The plaintiffs challenged the jurisdiction of French courts over their case against the air carrier.
7
Jurisdiction
Choice of the Parties
Cass. Civ. 1ère, 7 December 2011, West Caribbean Airways:
The jurisdiction option available to the plaintiff by [article 33 §1 and 46 of the Montreal Convention] does not permit
that the dispute be adjudicated by a jurisdiction which also has jurisdiction other than the one [the plaintiff] chose. In
fact, this option which was accompanied by a limited list of competent fora in order to reconcile the various interests at
stake, in order to satisfy the objectives of predictability, security and uniformity sought by the Montreal Convention,
implies that that the plaintiff, and the plaintiff alone, would have the choice of deciding before which court the dispute
will be actually adjudicated without it being possible to oppose a rule of domestic procedure resulting in contradicting
[the plaintiff’s] imperative choice.
Hence, the French courts could not keep the case against plaintiff’s choice on the ground that the place of destination of
the flight (namely, Fort de France) is included among the jurisdiction criteria.
The decision « holds that the French forum is currently unavailable ».
The US courts were not impressed and maintained the forum non conveniens order.
8
Exclusivity and Accident
The permanent test?
The damage must be caused by an accident that took place on board the plane or during the course of any of the operations of
embarking or disembarking.
U.S. Supreme Court, January 12, 1999, El Al Israel Airlines, LTD., v. Tsui Yuan Tseng:
The Convention’s preemptive effect is clear: the treaty precludes passengers from bringing actions under local law when they
cannot establish air carrier liability under the treaty.
Definition of an accident under article 17 of the Warsaw convention in French case law:
An event that is sudden and external to the passenger, that, alone, would call on the liability presumption provided by article 17.
The accident mentioned at article 17 of the Warsaw convention is sudden, unique, born by the victim, resulting of an external
force localized in time and space.
The treaty supplants local law.
Cass. Civ. 1ère, 14 juin 2007, Gillet c. Air Canada:
DVT case claim based on failure to warn of DVT risk under consumer protection provisions.
The combination of article 24 of the Warsaw Convention and article L. 322-3 of the French code of Civil Aviation has the following
consequence: any action for damages, regardless of legal grounds, against the air carrier can only be brought within the conditions
and limits of the Convention, the provisions of which, in its article 17, establishes the liability of the carrier in case of death or
bodily injury of a passenger, if the accident that caused the damage occurred on board the aircraft.
9
Accident = Limit to Consumer Protection
Cour de cassation 1st chamber, 15 January 2014, Aigle Azur c/Merah:
If the cause of the damage is unknown, there is no accident within the meaning article 17 of the Warsaw Convention. A
court is not permitted to find an accident by eliminating a number of possible causes for the injury.
Cour de cassation 1st chamber, 8 October 2014, Air France c/ Durand:
A passenger fell allegedly because she could not see the stairs with a baby in her arms during disembarking. The claim was
based on the Montreal convention and the allegation of an implied duty of the air carrier to provide assistance. This does
not fall under the definition of “accident” and there is no right of claim.
10
Exclusivity
House of Lords, 12 December 1996,
Sidhu and Others, Appellants and British Airways PLC., Respondents;
Abnett (Known as Sykes), Appellant and Same Respondents:
The phrase “the cases covered by article 17″ extends therefore to all claims made by the passenger against the carrier
arising out of international carriage by air, other than claims for damage to his registered baggage which must be dealt
with under article 18 and claims for delay which must be dealt with under article 19. The words “however founded” which
appear in article 24(1) and are applied to passenger’s claims by article 24(2) support this approach. The intention seems
to be to provide a secure regime, within which the restriction on the carrier’s freedom of contract is to operate. Benefits
are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the
Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses
sustained in the course of international carriage by air, would distort the whole system, even in cases for which the
Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions
relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have
access to any other remedies, whether under the common law or otherwise, which may be available within the particular
country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected
to such remedies, because the whole matter is regulated by the Convention.”
11
Cour de cassation, Civ. 1ère, 15 July 1999, British Airways c/ M. Mohamed et autres:
The court relied on the contract of carriage implied contractual obligation of safety to order compensation post
completion of contract.
Even assuming that common law applies before and after disembarking it remains odd to find a “contractual liability” for
a liability of negligence in the performance of the air carriage.
Whether this view will remain under the Montréal Convention of 1999 is unclear.
12
1,400
1st
290
33
Lawyers and fee
earners worldwide
Law Firm of the Year
Legal Business Awards
2011
Partners worldwide
Offices across Europe,
Americas, Middle East,
Africa and Asia.
Clyde & Co LLP accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored
in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2014