ECJ sheds light on the notion of ‘accident’ under the Montreal Convention

On 2nd June 2022, the European Court of Justice (the “ECJ”) delivered a preliminary ruling concerning the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, (“the Montreal Convention”) and Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (“the Regulation”). Both the Montreal Convention and the Regulation regulate air carrier liability in cases of damages caused to passengers, baggage or goods during international carriage.

The ECJ case C-589/20 emerges following a preliminary ruling request from the Korneubourg Regional Court of Austria (“the Regional Court”) in the proceedings between JR and Austrian Airlines AG (“Austrian Airlines”), an air carrier. The regional proceedings concerned a claim for damages relating to bodily injuries suffered by JR caused by a fall during the disembarkation of a flight operated by Austrian Airlines.

The proceedings before the courts in Austria

JR, her husband, and their 3-year-old son, travelled from Thessaloniki, Greece to Vienna-Schwechat, Austria on an Austrian Airlines’ flight. When arriving in Vienna-Schwechat, JR fell on the lower third of the mobile stairway used to disembark the aircraft. The mobile stairway included a handrail on each side, but JR was holding her handbag in one hand and carrying her son in her other hand. As a result of this fall, JR suffered a fracture to her left forearm.

Following the incident, JR initiated an action for damages against Austrian Airlines in front of the District Court, Schwechat, Austria (“the District Court”) and this for EUR 4,675 plus costs and interest. She claimed that the stairway in question did not fulfil Austrian Airlines’ contractual obligation to protect and ensure the safety of its passengers, since she fell despite taking particular care when walking down the stairway in question. She nevertheless fell because that stairway, which was uncovered, had become too slippery due to the wet weather with drizzly rain. Austrian Airlines maintained the argument that there was no breach of contractual liability and this since the treads of the stairway being perforated allowed for water to run off quickly. The Airline further argued that JR’s fall was due to her own conduct in not using either of the stairway’s handrails and that she potentially aggravated her injuries by choosing not to receive immediate treatment in a nearby hospital to the airport.

The District Court dismissed the action brought by JR, holding that Austrian Airlines had not infringed its ancillary obligation to ensure the safety of its passengers and, moreover, that JR had not taken any precautions to prevent her fall. JR appealed against the District Court’s judgment in front of the Regional Court.

The Regional Court however had its doubts, first, as to whether JR’s fall is covered by the concept of ‘accident’ within the meaning of the Montreal Convention, as interpreted by the ECJ in a judgment of 19 December 2019. According to the Regional Court, the mentioned 2019 judgment outlined that ‘accident’ covers all situations occurring on board an aircraft, or in the course of any of the operations of embarking or disembarking in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation.

Furthermore, the Regional Court considered that JR at the very least contributed to her fall since she did not hold onto one of the handrails of the mobile stairway set up for the disembarkation of passengers. It was unclear for the Regional Court whether JR’s contributory negligence could exonerate Austrian Airlines from any liability.

Given the circumstances, the Regional Court decided to stay the proceedings and to seek clarity from the ECJ with regards to:

  1. The concept of “accident” within the context of Article 17 of the Montreal Convention covering the situation of a disembarking passenger sustaining an injury not caused by an object used when serving passengers and neither by a defect in the quality of the stairway; and
  2. Whether the air carrier’s liability in the context of Article 17 of the Montreal Convention concerning the exoneration of air carrier from liability, ceases to exist in its entirety if the passenger was not holding on to the handrail of the stairway at the time of the fall.

Relevant Legal Provisions

Introduced in 1999, the Montreal Convention – a modernisation of the rules of the Warsaw Convention – establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo.

Article 17 of the Montreal Convention deals with the death and injury of passengers together with damage to baggage. In particular, Article 17(1) provides that –

The carrier is liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused said death or injury took place on board the aircraft or during any of the operations of embarking or disembarking.

In accordance with Article 20 of the Montreal Convention, the air carrier may be partly or wholly exonerated from such liability, and this if the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights.

Regulation (EC) No 889/2002 has amended the Regulation by making the rules of the Montreal Convention applicable to all flights operated by EU air carriers. In tandem with the Montreal Convention, Recital (9) of the Regulation maintains that community air carriers may be exonerated from their liability in cases of contributory negligence of the passenger concerned.

Referral to the ECJ

The ECJ considered what constitutes an ‘accident’ under the Montreal Convention. The ECJ held that Article 17(1) of the Montreal Convention must be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway used for the aircraft’s disembarkation and injures himself or herself constitutes an ‘accident’, within the meaning of that provision. The definition of ‘accident’ is to include when the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard. Accordingly, the concept of accident does not require that the damage is a result of the materialisation of a hazard and thus, the air carrier’s fulfilment of diligence and safety obligations does not have an impact on the classification of an ‘accident’.

With regards to the second question posed by the Regional Court, the ECJ determined that where an accident which caused damage to a passenger consists of a fall of that passenger, for no ascertainable reason, on a mobile stairway set up for the disembarkation of the passengers of an aircraft, the air carrier concerned may be exonerated from its liability. Exoneration of liability arises only 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 or other wrongful act or omission of that passenger. Furthermore, the air carrier is to prove in accordance with the applicable national rules and subject to the observance of the principles of equivalence and effectiveness.

Opinion of the Advocate General of the Court

In the opinion delivered by the Advocate General of the Court on the 20th January 2022, the concept of ‘accident’ under Article 17(1) of the Montreal Convention requires that there is the satisfaction of an externality criterion with the fall being triggered by reasons which are not purely internal to him/her. Moreover, these triggering factors are to be characterised as unexpected and unusual to the normal state of affairs relating to the aircraft.

Regarding the compensable nature of the accident, the Advocate General suggested that the exoneration from liability involves a comparative assessment of the extent to which the injury was caused by the ‘accident’ and by his/her own negligence.

Concluding Remarks 

The ECJ has been steadily developing the consumer protection sphere in claims for accidents and this judgment is yet another advancement. This judgment takes on a different significance with it being the first occasion in recent years that together with an interpretation of an EU regulation, the ECJ also gave a ruling on the Montreal Convention. This is particular in that the Montreal Convention is an international convention ratified by many non-EU member states. In this way, C-589/20 not only becomes an interpretation of interest to the European Union but to all the international countries and territories that apply the Montreal Convention.

The author would like to thank Nicole Carabott, a student intern at Ganado Advocates, for her assistance during the drafting of this article.

This article was first published in the Malta Independent (24th August 2022).