ISSUE 54 EWJ web - Journal - Page 48
As we discussed last time, JR vs. Austrian Airlines C589/20 saw a passenger who was disembarking from
an aircraft using a mobile stairway falling and consequently fracturing her arm. She was not using the
handrail at the time, as she was carrying a handbag
with one hand and carrying her son in the other. The
CJEU considered contributory negligence, determining that Article 20 “must be interpreted as meaning that
[…] the air carrier concerned may be exonerated from its liability towards that passenger […] to the extent that, taking account of all the circumstances in which that damage occurred,
that carrier proves […] that the damage suffered by that passenger was caused or contributed to by the negligence […] of
that passenger.”
The principle of “mutual liability”, akin to vicarious
liability, is noted at Article 41: “The acts and omissions of
the actual carrier and of its servants and agents acting within
the scope of their employment shall, in relation to the carriage
performed by the actual carrier, be deemed to be also those of
the contracting carrier.”
Reed vs. Wiser 555 F 2d 1079 (1977)
In the leading case of Reed, a flight had crashed into
the sea, resulting in the death of all 79 passengers and
9 crew members on board. Rather than suing the airline, plaintiffs sought to avoid the limited liability present under the then Warsaw Convention by suing its
President and Vice-President of Audit and Security. It
was the plaintiffs’ position that they failed to prevent
the placing of a bomb onboard the aircraft, which they
allege caused the crash.
Practice Points – Injuries, Limitations, and Liability
- A “bodily injury” under the Montreal Convention
does not currently extend to exclusively psychiatric
injuries.
Circuit Judge Mansfield noted that the first consideration was “whether, in the absence of any definition of the
term "transporteur" (carrier) used in the Convention, that
term is limited to the corporate entity […] or was intended to
embrace the group or community of persons actually performing the corporate entity's function.” It was noted that
the common law position was that a pursuer would
have a direct claim in negligence against an agent who
causes them harm which is distinct from the principal.
In Scotland, where such a situation arises it is not uncommon for a claim of vicarious liability to be brought
against an employer.
- Where physical and psychiatric harm coincide, it is
reasonable to consider the input of a consultant
psychiatrist when considering damages.
- There is a strict two year limit within which a
pursuer may make a claim. Practitioners must diarise
this at the outset.
- Strict liability will apply on the value of a claim up to
128,821 Special Drawing Rights.
- Contributory negligence may apply; the burden of
proof falls on the defender.
The difficulty arises in the need for uniformity in
practice across multiple jurisdictions, with decisions
that are made in line with the ordinary language of
the Convention and with due consideration to the
aims of the Convention.
What is a Carrier?
Given the reference within the Montreal Convention
to the parties involved, it is essential that we consider
the meaning of a carrier and any agency relationships which arise in the purview of the Montreal
Convention.
On reviewing the history of the Convention, the Court
reached the view that “the plain language of the original
Convention, […] tends to support [the] appellants' contention
that its liability limits were intended to apply to a carrier's employees […] That interpretation […] does reflect the legal principles of many civil law states, which treat the corporation and
its employees as one. […] We believe […] that a construction
of the language of Article 22(1) and 24 which extends the
Convention's liability limitation to passenger claims against
employees not only reflects the plain meaning and purpose of
the French text of these articles but accomplishes all of the
Convention's objectives.”
What is a Carrier?
For the purpose of the Montreal Convention,
“international carriage” is any carriage in which the
points of departure and destination are (i) within the
territories of two States Parties; or (ii) within the territory of a single State Party but with a stop in the territory of another State (even where they are not a State
Party).
The Montreal Convention considers the responsibilities of both the “contracting carrier” and the “actual
carrier”. The contracting carrier will be the party who
enters into a contract of carriage with the passenger
(e.g. an airline). It may be that they perform the whole
carriage, however they may also act as a principal instructing another party or parties (the actual carrier)
who performs all or part of the carriage on the
principal’s authority.
It followed that the plaintiffs in Reed were unable to
recover from the employees a sum greater than that
which would have been “recoverable in a suit against the
carrier itself as limited by the Warsaw Convention with its applicable agreements and protocols.”
The Modern View in Scotland
In Mather v easyJet Airline Co Ltd 2023 S.C. 171, a pursuer (represented by Digby Brown) had been injured
when disembarking an easyJet flight from Edinburgh
to Hamburg. The pursuer had been pushed in his
wheelchair along an airbridge in Germany by Mr
Heinz, an employee of Deutches Rotes Kreuz (DRK).
There was no dispute that easyJet were liable under
the Montreal Convention up to the Article 21.1 limit
(around £146,000.00 at the time). The pursuer was
Where an actual carrier performs all or part of the
carriage governed by the Montreal Convention, they
are subject to its provisions for the portion of the carriage which they perform. The contracting carrier remains subject to the Montreal Convention for the
whole of the carriage which was contemplated by their
contract with the passenger.
EXPERT WITNESS JOURNAL
46
APRIL 2024