Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 20January 2022(1)
Case C‑589/20
JR
v
Austrian Airlines AG
(Request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))
(Reference for a preliminary ruling– Air transport– Montreal Convention– Article17(1)– Liability of air carriers for death or bodily injuries sustained by passengers– Requirements of a causal ‘accident’ taking place ‘in the course of any of the operations of… disembarking’– Passenger falling on the boarding stairs whilst disembarking– Article20– Contributory negligence defence– Failure of the passenger to hold on to the handrails)
I.Introduction
1.The present case touches upon the day-to-day hazard of harmful trips and slips. It raises, more precisely, the issue of whether, and, if so, to what extent, air carriers are liable when those unfortunate occurrences happen to passengers on board an aircraft or on facilities used to embark or disembark it.
2.In that respect, the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) has referred to the Court of Justice two questions on the interpretation of Article17(1) and Article20 of the Convention for the Unification of Certain Rules for International Carriage by Air(2) (‘the Montreal Convention’). Those questions have been submitted in the context of a claim for damages brought by JR, a passenger on an international flight, against Austrian Airlines AG, the carrier who sold and operated that flight, concerning injuries sustained when she fell, for no ascertainable reason, on the boarding stairs whilst disembarking.
3.The first question is about whether such a fall constitutes an ‘accident’ within the meaning of Article17(1) of the Montreal Convention, which incurs the liability of the air carrier pursuant to that provision. The second question concerns whether, in that context, the passenger’s failure to hold on to the handrails attached to the boarding stairs amounts to contributory negligence on his or her part, exonerating the carrier from its liability pursuant to Article20 of that convention. In this Opinion, I will explain why both questions call, in my view, for a nuanced, case-by-case answer.
II.Legal framework
A.The Montreal Convention
4.The third recital of the Montreal Convention states that the States Parties ‘[recognise] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’.
5.The fifth recital of that Convention states that ‘collective State action for further harmonisation and codification of certain rules governing international transport by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.
6.Article17 of the Montreal Convention, entitled ‘Death and injury of passengers– damage to baggage’, provides in paragraph1 that ‘the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
7.Pursuant to Article20 of that convention, entitled ‘Exoneration’, ‘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, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.… This Article applies to all the liability provisions in this Convention, including paragraph1 of Article21’.
8.Article21 of the Montreal Convention, entitled ‘Compensation in case of death or injury of passengers’, reads as follows:
‘1.For damages arising under paragraph1 of Article17 not exceeding 100000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2.The carrier shall not be liable for damages arising under paragraph1 of Article17 to the extent that they exceed for each passenger 100000 Special Drawing Rights if the carrier proves that:
(a)such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b)such damage was solely due to the negligence or other wrongful act or omission of a third party.’
B.European Union law
9.Article3(1) of Council Regulation (EC) No2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air,(3) as amended by Regulation (EC) No889/2002(4) (‘Regulation No2027/97’), states that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’.
III.Facts, national proceedings and the questions referred
10.On 30May 2019, JR, her husband and their two-year-old son travelled from Thessaloniki (Greece) to Vienna (Austria) on a flight operated by Austrian Airlines, pursuant to a contract of carriage by air concluded with that company.
11.After landing at Vienna International Airport, the aircraft was stationed in an outside disembarking position. Uncovered boarding stairs with a handrail on each side were positioned at both the front and rear of the aircraft to allow the passengers to disembark. JR and her family allowed other passengers to go first before themselves using the stairway at the front. JR’s husband started descending the steps first, holding a piece of wheeled hand luggage in each hand. He almost fell on the lower third of the stairs but managed to stay on his feet. JR then followed, holding her handbag in her right hand while carrying her son in her left arm. She fell where her husband had almost fallen previously, hitting the edge of the stairway. She suffered a fracture of her left forearm and a haematoma on her buttocks.
12.JR brought an action against Austrian Airlines before the Bezirksgericht Schwechat (District Court, Schwechat, Austria), seeking damages of EUR4675.00 plus interest and costs. In essence, she claimed that, pursuant to Austrian law, the carrier was liable for the injuries she suffered since it had breached its contractual obligation to ensure the safety of passengers.(5) In that respect, JR submitted that, when passengers are to disembark outside, it is standard practice for the carrier to provide covered boarding stairs and to ensure that these are not greasy or slippery. In this case, despite the rain, Austrian Airlines had used uncovered stairs, thus increasing the risk that someone may slip on the wet stairs. Moreover, the step on which JR slipped was, according to her, oily and/or greasy. Indeed, the stairs were so slippery that her husband almost fell in the exact same spot where she did in fact fall, despite the fact that, after having seen her husband’s near fall, she took special care by picking up her son in her arm to prevent him from slipping and walked down very carefully.
13.In its reply, Austrian Airlines submitted, first, that it did not breach its obligation of safety. The use of boarding stairs equipped with perforated/corrugated treads to reduce the risk of slipping ensured that the passengers could disembark without risk. Furthermore, the stairs in question were in good technical condition and were not wet, oily or greasy and therefore not slippery. Secondly, and in any event, it could reasonably be expected of JR to hold on to the handrails, especially as she had just witnessed the near fall of her husband. In addition, it cannot be ruled out that her fall happened specifically because she was holding her son. Thirdly, JR chose not to seek further treatment in a nearby hospital immediately after the incident, despite the medical instructions and advice given to her, but instead travelled back to Linz (Austria), where she did not seek treatment until late into the evening of 30May 2019. As such, it cannot be ruled out that her injuries were not aggravated by the delay in treatment.
14.By judgment of 15March 2020, the Bezirksgericht Schwechat (District Court, Schwechat) dismissed the action in its entirety. In addition to the facts summarised above in point11, that court further established that approximately 60 passengers had used the boarding stairs to disembark before JR, none of which had slipped or complained about their slipperiness. The steps were made of corrugated sheet metal, which ensures a particular non-slip quality. Such stairs are in constant use at Vienna International Airport, where no covered stairs are available. In addition, those pieces of equipment are certified and the boarding stairs at issue were in good condition and showed no signs of defects or damage. On the day in question, while the steps were indeed damp because it had rained earlier, they could not be considered as being wet given that it was not raining at the time when the passengers disembarked. Nor were they oily, greasy, or in some way covered by large areas of dirt. Isolated, small dot-shaped pieces of dirt of unknown consistency were found on the last three steps only, but it could not be established that those pieces of dirt were slippery or even that chewing gum had become stuck to the steps. Lastly, JR had watched her husband almost fall and then proceeded to fall herself in the same spot. Aside from the fact that neither of them had used the handrails, it was not possible to establish why the claimant fell.
15.In the light of those facts, and in accordance with Austrian law, the first-instance court ruled that Austrian Airlines had not breached its obligation of safety. An air carrier need take only those measures that can be reasonably expected of it. In that respect, the use of boarding stairs with non-slip surfaces was sufficient to ensure that passengers could disembark the aircraft without risk. In any event, every passenger should look where he or she is going. Having just witnessed the near fall of her husband, JR did not take any precautions to prevent her own fall. It would have been reasonable for her to pause and then use the handrail before continuing her descent. It would also have been possible for JR to seek the help of her husband. Her failure to reach for the handrail even though a risk had already been identified meant that her fall was primarily her own fault.
16.JR lodged an appeal against that judgment before the Landesgericht Korneuburg (Regional Court, Korneuburg). That court notes that Austrian Airlines’ liability must be assessed not by reference to Austrian law, but to the conditions set out in the Montreal Convention. In that respect, it doubts that a fall such as the one that JR experienced qualifies as an ‘accident’ within the meaning of Article17(1) of that convention, as defined in the judgment in Niki Luftfahrt.(6) In any case, it wonders whether the negligence of the passenger– who failed to hold on to the handrails– exonerates the carrier from any liability pursuant to Article20 of the convention.
17.Against that background, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)Is Article17(1) of [the Montreal Convention] to be interpreted as meaning that the concept of “accident” within the meaning of that provision covers a situation in which a passenger falls on the last third of a mobile boarding stairway when disembarking from an aircraft– for no ascertainable reason– and sustains an injury, which was not caused by an object used when serving passengers within the meaning of [the judgment in Niki Luftfahrt], and there was no defect in the quality of the stairway, which, in particular, also was not slippery?
(2)Is Article20 of [the Montreal Convention] to be interpreted as meaning that any liability on the part of the air carrier ceases to exist in its entirety if circumstances such as those described in [question]1 exist and the passenger was not holding on to the handrail of the stairway at the time of the fall?’
18.The request for a preliminary ruling, dated 15September 2020, was received at the Court on 10November 2020. JR, Austrian Airlines, the German Government and the European Commission lodged written submissions before the Court. No hearing was held in the present case.
IV.Analysis
19.The Montreal Convention is a treaty setting out uniform rules governing international carriage by air. Therein, it notably defines the obligations of air carriers towards passengers with whom they have concluded a contract of carriage. As that convention was concluded by, inter alia, the European Union,(7) it has been an integral part of the EU legal order from the date it entered into force in so far as the EU is concerned, namely 28June 2004. Accordingly, from that date, the Court has had the jurisdiction to give a preliminary ruling concerning its interpretation.(8)
20.As the referring court rightly observes,(9) the Montreal Convention applies in the main proceedings. Indeed, JR concluded a contract of carriage with Austrian Airlines and that contract concerned an ‘international carriage’, within the meaning of Article1 of the convention, as the place of departure and the place of destination of that flight are situated within the territories of two States Parties, namely the Hellenic Republic and the Republic of Austria.(10)
21.ChapterIII of the Montreal Convention contains various provisions relating to the liability of air carriers. In particular, Article17(1) deals with their liability in case of ‘death or bodily injury’ of passengers. In the present case, it is not disputed that the fracture and haematoma sustained by JR(11) in her passenger capacity and for which she seeks compensation from Austrian Airlines constitute such ‘bodily injuries’.
22.JR’s claim thus falls neatly within the scope of Article17(1) of the Montreal Convention. Moreover, in such a case, that provision applies exclusively. Indeed, pursuant to Article29 of the convention, whatever the cause(s) of action invoked by the plaintiff to support his or her claim– domestic tort law, contractual liability, and so on– it must fulfil the conditions and limits of liability set out in that treaty or else be dismissed. In other words, ‘if a remedy for the injury is not available under the Convention, it is not available at all’.(12) Hence, although JR’s claim is based on the Austrian rules of civil liability, its success depends ultimately not on the content of those rules, but on the proper construction of the convention.(13)
23.In that respect, Article17(1) of the Montreal Convention provides that the injured passenger has a claim against the air carrier ‘upon condition only that the accident which caused the… injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
24.When those requirements are satisfied, the defences available to the carrier are rather limited and vary depending on the amount of damages to be awarded to the plaintiff. If the value of the claim does not exceed 100000 Special Drawing Rights (SDR),(14) Article21(1) of the Montreal Convention states that the air carrier ‘shall not be able to exclude or limit its liability’. If the claim is over and above that threshold, the carrier may, pursuant to Article21(2) of the convention, limit(15) its liability by proving, in essence, that the passenger’s injury was not due to its fault/negligence. It is common ground that JR’s claim does not exceed 100000SDR, so that Austrian Airlines could not, in any event, avail itself of that particular defence.
25.Nevertheless, despite what the seemingly unqualified wording of Article21(1) of the Montreal Convention suggests, another defence remains available to a carrier in that situation. It may, in fact, exclude or limit its liability– only– by proving contributory negligence on the part of the plaintiff, pursuant to Article20 of the convention. Indeed, that provision applies to all cases of damage referred to in that treaty, including ‘bodily injury’ of a passenger, even when the claim’s value does not exceed 100000SDR.(16)
26.In that context, the questions submitted to the Court relate to the claim’s conditions (Article17(1)) and its defence (Article20). The first question is about the proper construction of the concept of ‘accident’ within the meaning of the former provision. The second question concerns the issue of contributory negligence envisaged in the latter. Article17(1) has already been interpreted by the Court, in particular in the judgment in Niki Luftfahrt. Article20 has not. Overall, an answer to the questions submitted cannot be conclusively deduced from the existing case-law, although some general lessons can.
27.First, the concepts contained in the Montreal Convention, such as ‘accident’ and ‘negligence’, must be interpreted uniformly and autonomously, in accordance with the rules of interpretation of general international law, which are binding on the European Union.(17)
28.In that respect, secondly, these concepts must be construed following the rules of customary international law, as codified in the Vienna Convention on the Law of Treaties of 23May 1969.(18) The relevant provisions of the Montreal Convention must therefore be interpreted in good faith in accordance with the ordinary meaning to be given to their terms in their context and in the light of its object and purpose(19)– which include ‘ensuring protection of the interests of consumers in international carriage by air’ while maintaining an ‘equitable balance’ between these last interests and those of air carriers.(20)
29.I would add, as a third point, that, since the Court is only one of the jurisdictions competent to interpret the Montreal Convention, and since the uniform application of that convention in all the States Parties is an ideal to be pursued, it is appropriate for the Court, when ruling on concepts such as ‘accident’ and ‘negligence’, to take into account, and draw inspiration from, the decisions handed down by the courts of those States Parties.(21)
30.I will discuss, in the next sections, the questions submitted in the light of these general considerations. Before that, however, I shall make one last remark, relating to the facts of the present case. It is apparent from the order of reference that, while some of those facts are common ground, the parties to the main proceedings dispute other circumstances, namely whether the boarding stairs in question were wet, greasy or oily and thus slippery, and whether that was the reason for JR’s fall. They also disagree as to whether JR was negligent for not holding on to the handrails.(22) Nevertheless, national courts have already established and assessed all those facts. They have found that the stairs were not slippery nor defective in any way, that it was thus impossible to establish why JR fell and that she was indeed negligent.(23) The Court is required to rule on the interpretation requested on the basis of those findings.(24) I will do the same in this Opinion.
A.On falls and ‘accidents’ within the meaning of Article17(1) of the Montreal Convention (first question)
31.Two cumulative requirements flow from the wording of Article17(1) of the Montreal Convention. For the air carrier to be liable, the ‘bodily injury’ sustained by the passenger must (i) have been caused by an ‘accident’ (ii) that took place ‘on board the aircraft’ or ‘in the course of any of the operations of embarking or disembarking’.
32.The second requirement is not the issue here. The referring court assumes that it is satisfied and thus did not submit any question on that matter. Austrian Airlines nonetheless disputes that point before the Court. It submits, in essence, that the concepts of ‘embarking’ and ‘disembarking’ within the meaning of Article17(1) of the convention should be limited to the process of passing the threshold of the aircraft at the point of embarkation or disembarkation, that is to say stepping inside or outside the aircraft, from or to the boarding stairs or jetway. Hence, when JR fell in the lower third of the stairs she was no longer ‘disembarking’. For the sake of providing the national court with a useful answer, I shall briefly address this argument.
33.The Montreal Convention does not offer any definition of the concepts of ‘embarking’ or ‘disembarking’ contained in Article17(1). That said, following the rules of interpretation restated in point28 above, I see no reason why they should be construed in the narrow way suggested by Austrian Airlines. First, in its ordinary meaning, the term ‘embarking’ relates, in a broad sense, to the act of getting passengers (or cargo, and so on) on an aircraft (or a vessel, and so on) before a journey, whereas ‘disembarking’ means the opposite. Secondly, the terms ‘any of the operations’ used in Article17(1)(25) convey the intention of the drafters of the convention to cover, with those concepts, a broad range of situations, clearly not limited to the act of stepping inside or outside the aircraft– or even the act of walking up or down boarding stairs for that matter. Thirdly, on that last point, it is arguable that within the context of modern air travel, ‘embarking’ and ‘disembarking’ are complex processes, often involving many gates, corridors, shuttles and stairs before one reaches his or her seat or, conversely, finally sets foot in a given country. Fourthly, the object and purposes of the Montreal Convention also call for a broad view. If Austrian Airlines’ view were correct, the effet utile of Article17(1) would, on the contrary, be limited quite drastically. Accordingly, national courts have understood these concepts as being wide enough to encompass, in the interests of passengers, events taking place on the tarmac, in shuttle buses conveying them to aircrafts or airport terminals, or even inside ‘sterile areas’ of those terminals, as long as– in the interests of air carriers– the passengers are under the control of the carrier’s personnel when these happen.(26) In summary, the concept of ‘disembarking’ within the meaning of Article17(1) obviously includes, but is not limited to, descending the boarding stairs after landing.
34.The thorny issue concerns the first requirement. In essence, by its first question, the referring court wonders whether the concept of ‘accident’ within the meaning of Article17(1) of the Montreal Convention covers a situation in which a passenger falls on the boarding stairs whilst disembarking, even if the reason for his or her fall cannot be established and, in particular, it was not due to ‘an object used when serving passengers’ or any defect or slipperiness of the stairs.
35.I recall that the Montreal Convention does not define the concept of ‘accident’ contained in Article17(1). National courts use, in that respect, a definition stated more than 30years ago vis-à-vis Article17 of the Warsaw Convention. In its seminal decision in Air France v. Saks,(27) the United States Supreme Court interpreted that concept as covering ‘an unexpected or unusual event or happening that is external to the passenger’. In the judgment in Niki Luftfahrt, the Court provided its own definition. It ruled that, in accordance with the ordinary meaning of that term, an ‘accident’ is an ‘unforeseen, harmful and involuntary event’.(28) The only substantive difference between these two definitions lies in the ‘externality’ criterion, introduced in the first but seemingly absent from the second, a point which I shall return to below.(29)
36.It also follows from a majority of national decisions and the judgment in Niki Luftfahrt that, as the carrier is liable for a passenger’s injury under Article17(1) ‘upon condition only’ that it was caused by an ‘accident’ that took place on board the aircraft or in the process of embarking or disembarking, no additional conditions of liability shall be ‘forced’ into that concept– otherwise the simple logic of that provision would be distorted.
37.In particular, first, as the Court expressly stated in that judgment, the carrier’s liability pursuant to Article17(1) of the Montreal Convention shall not depend on whether the passenger’s injury is due to the materialisation of a hazard typically associated with aviation. Although some national courts have taken the opposite view, the Court rightly observed that reading such a condition in the concept of ‘accident’ would be consistent neither with its ordinary meaning nor with the objectives pursued by the convention.(30) Thus, the argument raised by Austrian Airlines that falling down the stairs is– undeniably– a hazard of everyday life is irrelevant in answering the question submitted by the referring court.
38.Secondly, whether or not the passenger’s injury was caused by ‘an object used when serving passengers’, as mentioned by the referring court in its first question, is also irrelevant in my view, although in that court’s defence, some ambiguity exists on that point. After all, the Court did state in the judgment in Niki Luftfahrt that the concept of ‘accident’ within the meaning of Article17(1) ‘covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger’.(31)
39.However, I strongly doubt that the Court intended, by that statement, to constrict that concept with a new condition, foreign to the wording of Article17(1), having just dismissed another one in the same judgment.(32) In my view, that statement is rather intended to be an abstract description of the circumstances at stake in that case– which involved a disposable cup of hot coffee, served by the carrier’s personnel, tipping from a tray table and causing scalding to a passenger. Many events taking place on board aircrafts or in the process of embarking or disembarking may meet the definition of an ‘accident’, as set out in point35 above, even if they may not involve ‘objects used when serving passengers’, and vice versa. Whether, in the present case, JR’s fall was due to such an ‘object’ is therefore not the issue.(33)
40.Thirdly, contrary to what Austrian Airlines seems to suggest, the carrier’s liability pursuant to Article17(1) of the Montreal Convention cannot depend on fault/negligence on its part. Whereas that may be a condition of liability in domestic tort/contract law, the wording of that provision does not refer to any element of the sort. Again, what matters is whether an ‘accident’ took place in certain situations, and that concept is an objective one. The fact that, in the present case, Austrian Airlines has taken reasonable care to prevent JR’s injury(34) is therefore irrelevant when it comes to deciding whether that injury was caused by such an event.(35)
41.An appreciation of the whole liability regime set out in the Montreal Convention in case of ‘bodily injury’ sustained by a passenger confirms that interpretation. I recall that fault/negligence on the part of the carrier, or rather the absence of it, can play a part at the defence stage, pursuant to Article21(2) of that convention. The carrier may sometimes limit its liability by proving that, although an ‘accident’ did happen, it is not to blame for the injury.(36) Thus, fault/negligence cannot possibly be a component of that concept.
42.In short, the ‘real question’ to be answered is a narrow one. It boils down to the following: was the passenger’s injury caused by an event meeting the objective definition of an ‘accident’, as set out in point35 above?
43.For JR, the German Government, as well as the Commission, that question should be answered affirmatively in the present case. Following the definition of the Court, they submit that a fall such as the one that JR experienced is evidently a ‘harmful’ and ‘involuntary’ event. Furthermore, while there is always a risk of falling on boarding stairs, and people do indeed fall occasionally, it is nonetheless considered to be ‘unforeseen’ when it happens.(37)
44.On the other hand, for Austrian Airlines, the question should be answered in the negative. It submits, in essence, that there was no ‘accident’ in the present case since nothing ‘unexpected’, ‘unusual’ or ‘unforeseen’ caused the fall of the plaintiff. Passengers routinely descend boarding stairs after their flight. Moreover, with the facts of the main proceedings in mind, there was nothing out of the ordinary, such as an unexpected difference of level between the floor of the aircraft and the stairs, nor a defect or substance that would have made them slippery. In that regard, the referring court seems to agree.
45.These opposing views reflect the different approaches taken by national courts in similar circumstances.
46.Indeed, some national decisions follow the logic put forward by JR, the German Government and the Commission. Pursuant to these decisions, a passenger’s fall generally qualifies as an ‘accident’ within the meaning of Article17(1) of the Montreal Convention.(38)
47.Other national decisions– which, to my knowledge, represent an overwhelming majority– follow the logic suggested by Austrian Airlines. Pursuant to those decisions, an ‘accident’ is not recognised every time a passenger falls and injures himself or herself. The crucial question is why he or she fell. An ‘accident’ appears to happen where the fall was triggered by some unexpected or unusual factor, external to the passenger. For instance, ‘accidents’ were recognised to have occurred where passengers slipped and fell on boarding stairs due to the presence of snow/ice or water on the steps,(39) their sudden movement(40) or an unexpected drop between the floor of the aircraft and the jetway.(41) Passengers falling on board an aircraft because they slipped on a soap stain on the toilet floor(42) or because a fellow passenger suddenly stepped on their foot(43) were also considered victims of ‘accidents’. On the other hand, where a passenger fell for no ascertainable reason,(44) or where the fall was due solely to his or her own prior state of health,(45) the claim was dismissed.
48.In my view, the logic underpinning that second approach is the correct one, for a number of reasons.
49.First, although, in everyday language, the term ‘accident’ is often conflated with that of ‘injury’, that is not the same in the Montreal Convention. Article17(1) distinguishes between the ‘bodily injury’ suffered by the passenger and the ‘accident’ that caused it. Hence, one must separate cause and effect. I tend to consider that the act of falling is not a cause, but the effect of something else: it is a person’s reaction to a trigger.
50.Therefore, when one wonders whether an ‘accident’ has happened, one cannot look at the fall in isolation without considering what triggered it. I recall that, pursuant to Article17(1), the plaintiff does need to establish that an ‘accident’ caused his or her injury. ‘I fell’ is too weak an explanation in that respect.
51.Secondly, on that last point, many reasons can lead a person to fall involuntarily and injure himself or herself. They can be ‘internal’ to that person– such as fainting because of his or her state of health– or ‘external’ to him or her– such as an unexpected encounter with a slippery surface.
52.In that respect, it seems quite obvious to me that when a passenger falls on board the aircraft, or during the process of embarking or disembarking, for reasons which are purely ‘internal’ to him or her, that passenger cannot have a claim against the air carrier under Article17(1) of the Montreal Convention.(46) For example, although a stroke is certainly– to use the wording of the Court– an ‘unforeseen, harmful and involuntary event’, it cannot reasonably qualify as an ‘accident’ within the meaning of that provision. The same reasoning applies to a passenger fainting because of his or her prior state of health, falling on the floor and injuring himself or herself as a result.
53.Indeed, there is a reason why, as I recalled in point35 above, national courts have consistently read an ‘externality’ criterion in the concept of ‘accident’. Although resting on the ordinary meaning of the term, that concept remains an autonomous one, used in a treaty to achieve a particular purpose– including, I recall, ‘ensuring protection of the interests of consumers in international carriage by air’ while maintaining an ‘equitable balance of interests’(47). It should accordingly be interpreted in the light of that purpose. In that respect, national courts have rightly considered that the drafters of the Montreal Convention did not intend to make air carriers liable for the prior health issues of their passengers that happen to manifest themselves on board the aircraft or during the process of embarking or disembarking.(48) Given this, while the ‘externality’ criterion is seemingly absent from the definition provided by the Court in the judgment in Niki Luftfahrt, I seriously doubt that it intended to dismiss it.(49)
54.Therefore, only if a passenger’s fall is triggered by some ‘external’ factor should he or she be considered to have been a victim of an ‘accident’ within the meaning of Article17(1) of the Montreal Convention. However, since any injury is the product of a chain of causes, it suffices that some link in the chain constitutes such a factor.(50)
55.Thirdly, I recall that, to qualify as an ‘accident’, an event has to be ‘unexpected’ or ‘unusual’ (or, to use the synonym employed by the Court, ‘unforeseen’). In that respect, it is well established in national case-law that there is no ‘accident’ in cases where an injury results from the passenger’s own particular, personal or peculiar reaction to the usual, normal and expected operation of the aircraft or the facilities provided for embarking and disembarking.(51) In the judgment in Altenrhein Luftfahrt,(52) it seems to me that the Court endorsed that approach. It ruled that a passenger that suffered a serious back injury, as a result of a so-called ‘hard landing’, was not the victim of an ‘accident’ within the meaning of Article17(1) of the Montreal Convention, since that landing was within the normal operating range of the aircraft and thus could not be considered as ‘unforeseeable’.(53)
56.Accordingly, for the carrier’s liability to arise, a passenger’s fall must result from something other than his or her own reaction to the normal operation of the aircraft or the abovementioned facilities. Indeed, if a passenger falls because the normal pressure inside the aircraft’s cabin makes him or her dizzy, I do not see why this should be treated differently than the back injury in the judgment in Altenrhein Luftfahrt. The fact that the passenger in the first scenario collapsed on the floor, whereas the passenger in the other scenario remained seated, should be irrelevant in my view.
57.Of course, whether something is ‘unforeseen’ or, on the contrary, usual, normal and expected depends upon whose or which perspective one adopts. In that respect, national courts tend to adopt the victim’s perspective.(54) However, in the judgment in Altenrhein Luftfahrt, the Court refused to do so, as it could lead to the ‘paradoxical result’ of the same event being classified as ‘unforeseen’ and, therefore, as an ‘accident’ for certain passengers, but not for others. The Court did not adopt the carrier’s perspective either. Instead, it opted for a more objective perspective and ruled that the ‘hard landing’ at stake in that case was usual, normal and expected as it did not exceed the limits laid down by the essential requirements concerning the operation of the aircraft in question.(55)
58.I agree that a degree of objectivity is required. Adopting the subjective perspective of one or the other interested party does not always lead to a balanced outcome.(56) However, industry standards, including the essential requirements concerning the operation of the aircraft or the facilities used for embarking or disembarking, while sometimes relevant, should not be a decisive factor. For instance, if a passenger falls and injures himself or herself on board the aircraft because of sudden air turbulence, one should, in my view, conclude that the injury was caused by an ‘unforeseen’ event and thus by an ‘accident’ irrespective of whether such turbulence exceeded the limits laid down in these essential requirements.
59.In my view, the ‘unexpected’, ‘unusual’ or ‘unforeseen’ character of the event causing the injury should rather be assessed from the perspective of a disinterested bystander, namely an hypothetical passenger, with some prior– and good/positive– experience of air travel.(57) Such a bystander would, for instance, certainly not expect to find some foreign substance or item– water, snow, oil, a banana skin, and so on– on a cabin floor or on boarding stairs.
60.In short, an ‘accident’ within the meaning of Article17(1) of the Montreal Convention takes place where a passenger’s fall is triggered– at least in part– by some factor ‘external’ to that person. Furthermore, that factor must be ‘unexpected’ or ‘unusual’ (or, put another way, ‘unforeseen’), from the perspective of a disinterested bystander. That is the case particularly when the fall involves the presence of some substance or item that does not form part of the normal operation of the aircraft or the facilities provided for embarking and disembarking.
61.Therefore, in my view, when a passenger slips and falls on a greasy stain on the cabin floor, on boarding stairs treacherously covered in snow, or as a result of other similar circumstances, the resulting injury is caused by an ‘accident’ within the meaning of Article17(1) of the Montreal Convention. On the other hand, when a passenger falls, as JR did in the circumstances of the main proceedings, on boarding stairs which are not slippery, defective or in any other way unusually hazardous, and where it is also not established that the fall was triggered by another ‘unexpected’ or ‘unusual’ (or ‘unforeseen’) factor– a sudden gap between the aircraft and the stairs, and so on– then there is no such ‘accident’. That fall constitutes no more than the passenger’s particular, personal or peculiar– and inexplicable– reaction to the usual, normal and expected function of those stairs.(58)
62.In my view, any other interpretation would run counter to the purpose of the Montreal Convention.(59) In particular, if the concept of ‘accident’ within the meaning of Article17(1) were to be understood, as suggested by JR, the German Government, as well as the Commission, as covering any harmful and involuntary passenger’s fall, irrespective of the triggering factor, then the scope of that provision would be extended unreasonably to the detriment of air carriers.(60)
63.Indeed, it would make air carriers accountable for incidents that result from reasons ranging from prior health issues to pure clumsiness of the passengers concerned. In that regard, it would be very close to making them liable for every harm that happens on board their aircrafts or during the process of embarking or disembarking, even though the drafters of the Montreal Convention precisely used the term ‘accident’ in Article17(1) rather than ‘event’ in order to narrow the category of claims that could be brought by passengers for ‘bodily injury’.(61) Such incidences would be hard to predict and impossible to prevent. It could therefore place a very heavy compensation burden on air carriers, which would be difficult to determine and would clearly be incompatible with the careful balance of interests struck by that convention.(62)
64.It is true that, as JR and the Commission recall, Article20 of the Montreal Convention grants air carriers a defence in the case of contributory negligence. That provision could indeed exonerate them in certain circumstances, where a fall involves the negligence of the plaintiff. That said, it would be of little help in the many instances where such negligence could not be established– for example, where a passenger falls in the middle of the tarmac for no ascertainable reason, or where the fall is due solely to his or her prior state of health.(63)
65.On the contrary, the interpretation provided in this Opinion, in my view, does not impose such a burden on air carriers,(64) while it enables passengers to be compensated ‘easily and swiftly’, as required by the Court in the judgment in Niki Luftfahrt.(65) The concept of ‘accident’ remains a broad one, and the burden resting on the plaintiff under Article17(1) is low. He or she merely needs to establish– successfully– that there was some sort of ‘unexpected’ or ‘unusual’ factor, external to him or her, that caused or contributed to his or her fall– such as the presence of snow on the steps on the boarding stairs– nothing less, but also nothing more. The plaintiff does not need to establish why something unexpected or unusual happened– why there was snow on the steps, or anything else.(66) In particular, he or she does not need to prove, as it stems from point40 above, that it is attributable to fault/negligence on the part of the carrier– it may as well result from the conduct of a third party or from an act of God.
66.Having regard to the foregoing, the answer to the first question should, in my view, be that the concept of ‘accident’ within the meaning of Article17(1) of the Montreal Convention covers a situation in which a passenger falls on the boarding stairs whilst disembarking, provided that the fall was triggered by some unexpected or unusual factor that is external to the passenger.
B.On the contributory negligence defence envisaged in Article20 of the Montreal Convention (second question)
67.Whether an ‘accident’ within the meaning of Article17(1) of the Montreal Convention took place is one thing. Whether that ‘accident’ is compensable is another. Although it is in principle the case, I recall that Article20 of that convention grants a defence to the carrier, in the form of a plea of contributory negligence.
68.In that context, by its second question, the referring court asks, in essence, whether, pursuant to that provision, the fact that a passenger, who fell on the boarding stairs whilst disembarking, did not hold on to the handrails should, in circumstances such as those in the main proceedings, exonerate the air carrier from its liability and, if so, to what extent.
69.Of course, the Court will not have to answer the second question if it replies to the first one as suggested in this Opinion. Indeed, the referring court would have to reject JR’s claim– since it would not be established that her injury was caused by an ‘accident’– without having to address the issue of contributory negligence. I shall therefore discuss it only in the alternative.
70.Broadly speaking, Article20 of the Montreal Convention functions, depending on the circumstances, as a partial or full defence against, notably, a claim for ‘bodily injury’ under Article17(1). Indeed, it allows the carrier to exonerate itself partially or even totally from the liability stemming from the latter provision. That is, the court will apply a partial or total deduction to the sum of damages that would otherwise be granted to the claimant.
71.When it comes, more specifically, to the conditions of exoneration, Article20 centres on the situation where ‘the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation’.(67) Thus the conduct of the passenger, be it an ‘act’ or an ‘omission’, must not only be part of the chain of causes that led to his or her injury but must also involve some element of ‘negligence’ or another kind of ‘wrongful’ behaviour. The carrier has the burden of proof in that regard.(68)
72.These concepts of ‘wrongful act or omission’ and ‘negligence’ are not defined in the Montreal Convention. I recall that they must nonetheless receive a uniform and autonomous meaning, in accordance with the rules of interpretation set out in point28 above. The general principles stemming from the laws of the States Parties and EU law(69) also provide relevant indications.
73.In the ordinary meaning of those terms, ‘wrongful’ is usually a broad synonym of unfair, illegal, harmful or blameworthy,(70) while ‘negligence’ means more precisely the failure to give the required care and attention to someone or something for whom or which you are responsible. I will concentrate on that second concept in the rest of this Opinion, as the ‘other wrongful act or omission’ envisaged in Article20 of the Montreal Convention most likely relates to some intentional conduct of the claimant, in other words, a scenario not at stake in the present case.
74.In the context of Article20, as the German Government and the Commission rightly observe, the point is not whether the claimant failed to give the required care and attention to the air carrier, but if he or she failed to do so in respect of his or her own safety.(71) Generally speaking, a person acts negligently if he or she fails to exercise ‘reasonable care’ in a given situation. In short, the carrier must show that the claimant did not exercise ‘reasonable care’ for his or her safety under the circumstances and, for that reason, caused or contributed to his or her injury. What is ‘reasonable’ is assessed objectively, by comparing the actual conduct of the person concerned with the one that a– hypothetical– reasonably diligent person would have had in the same situation.(72)
75.Two grounds of potential contributory negligence have been raised by Austrian Airlines in the main proceedings: first, the fact that JR failed to hold on to the handrails of the boarding stairs in order to minimise the risk of falling, although she had just witnessed her husband’s near fall; secondly, the fact that she chose not to be treated in a nearby hospital immediately after the incident but instead travelled home before doing so, which may have aggravated her injuries– in other words, she failed to ‘mitigate her loss’.(73) Both are, in my view, relevant under Article20 of the Montreal Convention. That said, the referring court does not ask whether such circumstances indeed amount to negligence on the part of the passenger. In fact, it is convinced that it does, at least with respect to the failure to hold onto the handrails. As I explained in point30 above, it is not my role to call that finding into question. I shall nonetheless make two related remarks.
76.First, as is already apparent from point74 above, whether a passenger acted negligently in a given situation is a highly factual issue. For instance, the fact that a passenger, who fell on boarding stairs whilst disembarking, did not hold on to the handrails can sometimes, but not always, qualify as contributory negligence on his or her part.(74) Whether a reasonably diligent person would have done so in the same situation depends on all the surrounding circumstances, such as the number of passengers on the stairs, whether or not it was raining, whether the person presented an increased risk of falling because he or she was tired after a long flight, carrying a heavy suitcase or a fussy child in his or her arm, and so on. Equally, the fact that a passenger chose not to receive medical treatment immediately after falling can sometime constitute a failure on his or her part to mitigate his or her loss. However, that depends on various circumstances such as the extent to which the injury seemed to be serious in that given moment, whether the carrier’s personnel informed or directed the injured person to the available medical services, or even whether the passenger’s doctor of choice is far away.
77.This leads me to my second point. The Court sometimes takes it upon itself to answer questions tailored to very detailed and specific set of facts. The case-law related to the concept of ‘extraordinary circumstances’ within the meaning of Article5(3) of Regulation (EC) No261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights,(75) is a prime example of that tendency. There, the Court often rules, in effect, on whether those sets of facts qualify as ‘extraordinary circumstances’.(76) I respectfully urge the Court to refrain from doing so when it comes to Article20 of the Montreal Convention. Otherwise, it may end up with a flow of requests for preliminary rulings asking it to assess a multitude of fact-specific scenarios. It should rather limit itself to setting abstract and general assessment criteria for the application of that provision, and let the national courts decide.
78.When it comes, now, to the legal consequences that should flow from a finding of contributory negligence, Article20 of the Montreal Convention states that the carrier shall(77) be ‘wholly or partly exonerated from its liability… to the extent that [the claimant’s] negligence or wrongful act or omission caused or contributed to the damage’.
79.The referring court wonders how that logic should be applied in the main proceedings. Given that, on the one hand, in its view, JR had been negligent for not holding on to the handrails and that, on the other hand, Austrian Airlines had not,(78) why should the carrier not be wholly exonerated from its liability for the ‘accident’ that befell the claimant?(79) It comes down to asking how one should decide on the degree of exoneration– full or partial and, if so, how much– the carrier must benefit from in a given case where contributory negligence has been established.
80.This is a tricky issue. Indeed, the defence of contributory negligence is usually found in traditional liability regimes, which are fault-based. Where the tortfeasor and the victim each committed a fault that contributed to the harm of the latter, liability is apportioned between the two, based on their respective share of responsibility, and the damages are calculated accordingly.(80) However, in the context of a ‘bodily injury’ claim under Article17(1) of the Montreal Convention, since, as opposed to the negligence of the claimant, fault/negligence on the part of the carrier is irrelevant,(81) how, then, can such an apportionment of liability be done?
81.No genuinely satisfying answer to this conundrum is likely to be found in legal theory. On a practical level, however, a solution consists, in my view, in assessing the extent to which the passenger’s injury was caused (i) by the relevant ‘accident’ and (ii) by his or her own negligence. It amounts to an exercise of comparative causality, to be done also by national courts.(82) In the end, the contributory negligence defence is a matter of fairness. It would not be fair for a carrier to be entirely liable for a passenger’s injury simply because an ‘accident’ is part of the chain of causes that led to it, while the latter also contributed to his or her injury. That defence contributes, as such, in ensuring the ‘balance of interests’ aimed at by the drafters of the Montreal Convention.
82.For instance, when a passenger falls on boarding stairs while disembarking due to (i) the fact that he or she slipped on an unexpected patch of snow on the steps and (ii) the fact that he or she did not hold on to the handrails– if it is considered negligent in the circumstances– then the claimant’s share of responsibility should, in fairness, absolve the carrier of a part of the liability that Article17(1) of the Montreal Convention otherwise imposes on it for the ‘accident’. In that context, the failure of the passenger to reach for the handrails should probably be treated like the failure of a person involved in a car crash caused by a third party to buckle his or her seatbelt: it is a contribution to the harm that justifies a partial reduction of the damages awarded. Total exoneration of the carrier should, on the other hand, be limited to cases of gross negligence on the part of the claimant.(83)
83.Having regard to the foregoing, the answer to the second question should in my view be that Article20 of the Montreal Convention applies, in the context of a claim under Article17 of that convention, where the claimant did not exercise reasonable care for his or her safety and, for that reason, caused or contributed to his or her injury. This is to be assessed by national courts in light of all the circumstances. The degree of exoneration of the carrier depends on the extent to which the injury was caused (i) by the relevant ‘accident’ and (ii) by the negligence of the claimant. Total exoneration is limited to cases of gross negligence on the part of the claimant.
V.Conclusion
84.In the light of all the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows:
(1)Article17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28May 1999, signed by the European Community on 9December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5April 2001, must be interpreted as meaning that the concept of ‘accident’ within the meaning of that provision covers a situation in which a passenger falls on the boarding stairs whilst disembarking, provided that the fall was triggered by some unexpected or unusual factor that is external to the passenger.
(2)Article20 of that convention must be interpreted as meaning that it applies, in the context of a claim under Article17 of that convention, where the claimant did not exercise reasonable care for his or her safety and, for that reason, caused or contributed to his or her injury. This is to be assessed by national courts in light of all the circumstances. The degree of exoneration of the carrier depends on the extent to which the injury was caused (i) by the relevant ‘accident’ and (ii) by the negligence of the claimant. Total exoneration is limited to cases of gross negligence on the part of the claimant.
1Original language: English.
2That convention, concluded at Montreal on 28May 1999, was signed by the European Community on 9December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5April 2001 (OJ 2001 L194, p.38).
3Council Regulation of 9October 1997 (OJ 1997 L285, p.1).
4Regulation of the European Parliament and of the Council of 13May 2002 (OJ 2002 L140, p.2).
5It is apparent from the order for reference that, pursuant to Paragraph1295(1) of the Allgemeines bürgerliches Gesetzbuch (General Civil Code), civil liability can arise, in particular, from breaching a contractual obligation. It is also apparent that, under Austrian law, conclusion of a contract of carriage by air brings about, on the part of the carrier, an ancillary obligation to ensure the safety of passengers, in particular when they embark and disembark.
6Judgment of 19December 2019 (C‑532/18, EU:C:2019:1127) (‘the judgment in Niki Luftfahrt’).
7See footnote2.
8See, notably, the judgment in Niki Luftfahrt (paragraph30 and the case-law cited).
9See point16.
10See point10. In addition, since Austrian Airlines is, as it would appear, a ‘Community air carrier’, within the meaning of Article2(1)(b) of Regulation No2027/97 (that is to say ‘an air carrier with a valid operating licence granted by a Member State in accordance with the provisions of [Council Regulation (EEC) No2407/92 of 23July 1992 on licensing of air carriers (OJ 1992 L240, p.1)]’), the former regulation also applies. However, when it comes to the liability of ‘Community air carriers’ in respect of injuries suffered by passengers, Article3(1) of that regulation refers to the relevant provisions of the Montreal Convention.
11See point11.
12House of Lords (United Kingdom), 8December 2005, Deep Vein Thrombosis and Air Travel Group Litigation, Re, [2005] UKHL72 (‘Deep Vein Thrombosis and Air Travel Group Litigation, Re’), per Lord Scott, §3.
13A fact that the parties to the main proceedings initially, and the first-instance court itself, seem to have overlooked (see points12 to 15).
14The SDR is an international reserve asset, defined and maintained by the International Monetary Fund (IMF), the value of which is based on a basket of national currencies and fluctuates daily (see https://www.imf.org/en/About/Factsheets/Sheets/2016/08/01/14/51/Special-Drawing-Right-SDR).
15Where a claim’s value exceeds 100000SDR and the carrier establishes that it is not at fault, it remains liable for damages sustained up to that sum.
16This is made clear by the last sentence of Article20, which states that it applies to ‘all the liability provisions in this Convention, including paragraph1 of Article21’. Nevertheless, some ambiguity exists on that point when it comes to ‘Community air carriers’. Indeed, the ‘information notice’ contained in the annex to Regulation No2027/97 states that ‘for damages up to 100000SDRs… the air carrier cannot contest claims for compensation…’ (My emphasis). However, in my view, this is simply a case of less than perfect drafting. First, I repeat that, when it comes to the liability of a ‘Community air carrier’ towards passengers, Article3(1) of Regulation No2027/97 refers to the provisions of the Montreal Convention (see footnote10 above). The conditions for liability (including the defences available to carriers) are, as a rule, the ones provided in that convention. Secondly, it is clear that the EU legislature, when amending Regulation No2027/97 by adopting Regulation No889/2002, intended to restrict the possibility for ‘Community air carriers’ to avail themselves of Article21(2) of that convention (see the annex to Regulation No2027/97, read in conjunction with recital11 of Regulation No889/2002). However, there is nothing to suggest that it also wished to forbid them from raising the defence provided for in Article20 of that convention. On the contrary, recital9 of Regulation No2027/97 was neither deleted nor amended by Regulation No889/2002 and thus still states in general terms that ‘Community air carriers may be exonerated from their liability in cases of contributory negligence of the passenger concerned’.
17See, notably, the judgment in Niki Luftfahrt (paragraph32 and the case-law cited).
18United Nations Treaty Series, vol.1155, p.331 (‘the Vienna Convention’).
19See Article31 of the Vienna Convention and the judgment in Niki Luftfahrt (paragraph31).
20See the third and fifth recitals of the Montreal Convention and the judgment in Niki Luftfahrt (paragraph36 and the case-law cited).
21See, by analogy, judgment of 6October 2020, Commission v Hungary (Higher education)(C‑66/18, EU:C:2020:792, paragraph92). Furthermore, the Convention for the unification of certain rules for international carriage by air, signed at Warsaw on 12October 1929, which preceded the Montreal Convention, contained provisions (Articles17 and 21) that were, despite some differences (see footnote77 below), equivalent to Article17(1) and Article20 of the Montreal Convention. Thus, the concepts of ‘accident’ and ‘negligence’ within the meaning of the latter provisions can be interpreted in the light of national decisions relating to the former, and vice versa (see Opinion of Advocate General Saugmandsgaard Øe in Niki Luftfahrt, C‑532/18, EU:C:2019:788, points26, 27 and 43). I will therefore refer without distinction to decisions relating to one or the other convention.
22Compare points12 and 13.
23See point14.
24Indeed, in preliminary ruling proceedings pursuant to Article267 TFEU, it is for the national courts alone to define the factual framework of the disputes which they are required to resolve (see, for instance, judgment of 7August 2018, Prenninger and Others, C‑329/17, EU:C:2018:640, paragraph27 and the case-law cited).
25There is no equivalent of these terms in the German version of the Montreal Convention (‘beim Ein- oder Aussteigen ereignet hat’). Although that is regrettable, in my view, it is irrelevant. Indeed, only the six language versions in which that convention was drafted (namely English, Arabic, Chinese, Spanish, French and Russian) are classified as ‘authentic’ and should be taken into account (see Opinion of Advocate General Saugmandsgaard Øe in Niki Luftfahrt, C‑532/18, EU:C:2019:788, point36). These ‘authentic’ versions seem to be consistent in that respect. See, notably, the Spanish (‘cualquiera de la operaciones’) and French (‘toutes opérations’) versions.
26See, for more details, Naveau,J., Godfroid,M., Frühling,P., Précis de droit aérien, 2nd edition, Bruylant, Bruxelles, 2006, p.333; Schmid,R., ‘Article17’, in Montreal Convention, Kluwer, the Netherlands, 2006, §§50-86; and Chapman,M., Prager,S., Harding,J., Saggerson on Travel Law and Litigation, 5th edition, Wildy, Simmonds & Hill Publishing, London, 2013, pp.499-502.
27US Supreme Court, 4March 1985, 470 U.S. 392 (1985) (‘Air France v. Saks’).
28The judgment in Niki Luftfahrt (paragraph35).
29See points52 and 53 below.
30See the judgment in Niki Luftfahrt (paragraph41).
31The judgment in Niki Luftfahrt (paragraph43 and the operative part).
32See point37.
33The opposite interpretation would lead to an unjustified difference in treatment of similar situations. If a passenger were involuntarily to harm another one by spilling a hot beverage, the characterisation of such an event as an ‘accident’ should not depend on whether it involved a disposable cup provided for by the air carrier or a reusable one brought by the passenger.
34See point15.
35See Air France v. Saks: ‘The “accident” requirement… involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury.’
36See point24.
37That is so even if, in this case, JR was alerted by the fact that her husband almost fell. Whether she should have been more careful after witnessing that incident ought to be taken into account only at the stage of examining the contributory negligence pursuant to Article20 of the Montreal Convention.
38See, for instance, Cour d’appel de Nouméa (Court of Appeal, Nouméa, France), 21January 2014, 13/00203.
39See United States Court of Appeals, Ninth Circuit, 19April 1993, Gezzi v. British Airways Plc, 991 F.2d 603 (9th Cir. 1993), and High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom), 31July 2019, Carmelo Labbadia v Alitalia (Societa Aerea Italiana S.p.A), [2019] EWHC 2103 (Admin).
40See Court of Appeal, New South Wales (Australia), 20August 2009, Air Link Pty Ltd v Paterson, [2009] NSWCA.
41See Wandsworth County Court (United Kingdom), 20October 2007, Singhal v British Airways Plc, [2007] 10 WLUK 552.
42See United States District Court, C.D. California, 20March 2006, Sharma v Virgin Atlantic Airways, 31 Avi 17, 539 (CD Cal, 2006).
43See United States District Court, N.D. California, 26August 2003, Kwon v. Singapore Airlines, 356 F.Supp.2d 1041 (N.D. Cal. 2003).
44See, notably, United States District Court, S.D. Florida, Miami Division, 4September 2008, Ugaz v. American Airlines, Inc., 576 F.Supp.2d 1354; Court of Appeal (England & Wales) (Civil division) (United Kingdom), 18December 2008, Beverley Anne Barclay v British Airways Plc, [2008] EWCA Civ 1419 (‘Beverley Anne Barclay v British Airways Plc’), and Cour de cassation (Court of Cassation, France), 15January 2014, 11-27.962.
45See Court of Appeal (England & Wales) (Civil division) (United Kingdom), 16April 1997, Chaudhari v British Airways Plc, [1997] 4 WLUK 221.
46See Deep Vein Thrombosis and Air Travel Group Litigation, Re, per Lord Mance, §56.
47See point28.
48See Naveau,J., Godfroid,M., Frühling,P., op. cit., p.331.
49Perhaps the Court did not mention it because it did not feel that it was necessary to do so in that case. Or maybe another explanation for this omission can be found in paragraph38 of the judgment in Niki Luftfahrt. There the Court observed that, at some point during the negotiation of the Montreal Convention, it was decided that the last sentence of the initial draft version of Article17(1) would be deleted, which provided that the carrier was not liable ‘in so far as the death or injury resulted from the passenger’s state of health’. In that respect, it appears from a statement presented by the Norwegian and Swedish delegations that they wished to delete that sentence, since to keep it would unbalance the interests at stake to the detriment of the passenger (see DCW Doc No11, 4/5/99). However, it seems to me that a statement by two delegations is hardly sufficient to justify the view that the drafters of that convention had the intention, by deleting that sentence, to make air carriers liable for the ‘internal’ events befalling their passengers, and in particular the manifestation of their personal health issues, absent any external ‘accident’ causing or aggravating them. Nothing in the rest of those travaux préparatoires goes in that direction.
50See, to that effect, Air France v. Saks. Together with an external factor triggering his or her fall, the passenger’s health may also have contributed to his or her injury– he or she was particularly unstable due to his or her health condition, and so on. The event should be qualified as an ‘accident’ within the meaning of Article17(1) irrespective of that fact. A passenger may also have contributed to his or her fall by being negligent– for instance, he or she was wearing flip-flops. But that is a matter for Article20 (see my analysis of the second question).
51See Air France v. Saks, and Beverley Anne Barclay v British Airways Plc, §36.
52Judgment of 12May 2021 (C‑70/20, EU:C:2021:379) (‘the judgment in Altenrhein Luftfahrt’).
53See, to that effect, ibid., paragraphs37 to 40.
54See Deep Vein Thrombosis and Air Travel Group Litigation, Re, per Lord Scott, §14.
55Ibid., paragraphs35 and 37 to 40.
56Taking the victim’s perspective could be unreasonably detrimental to air carriers, for the reason given by the Court in the judgment in Altenrhein Luftfahrt (paragraph35). Taking the carrier’s perspective would be, in turn, unreasonably detrimental to passengers. Indeed, events such as the spilling of a hot beverage on a passenger, or a passenger’s slip on a grease stain could be considered ‘usual’, ‘expected’ or ‘foreseeable’, as air carriers are accustomed to littering and spillages taking place on board their aircrafts.
57See, for a similar view, Supreme Court of Victoria (Court of Appeal) (Australia), Qantas v Povey, [2003] VSCA 227, per Ormiston JA, §§200-203.
58See, for the same view, Chapman,M., Prager,S., Harding,J., op. cit., pp.495-496. See, for the same solution on almost identical facts, Cour de cassation (Court of Cassation, France), 8October 2014, 13-24.346.
59See point28.
60See, by analogy, the judgment in Altenrhein Luftfahrt(paragraph36).
61See the judgment in Niki Luftfahrt (paragraph37). Thus, although the Court used the term ‘strict liability’ to describe Article17(1) (see paragraph36 of that judgment), that term is, in my view, not appropriate. It is true that the claimant does not have to prove fault/negligence on the part of the carrier in order to substantiate his or her claim (see point40). However, the liability resulting from Article17(1) is not based on the risk generated by the air carrier’s activity. Instead, it assumes some element of fault on the part of the carrier when an ‘accident’ happens on board or in the process of embarking or disembarking. The carrier is deemed to have failed in the organisation of the journey or in the care provided to passengers during it. If the theory of liability were ‘risk’, not ‘fault’, then air carriers would have no possibility to limit their liability by establishing the absence of fault/negligence on their part (see Article21(2)), and the contributory negligence of the passenger (see Article20) would be irrelevant (see Giemulla,E., ‘Article20– Exoneration’, in Montreal Convention, Kluwer, the Netherlands, 2006, §§2-3).
62See, for the same view, Beverley Anne Barclay v British Airways Plc, §§32-34.
63Unless the carrier could prove that the passenger was negligent when it comes to his or her state of health, or that it amounts to negligence to fly in that state, which would probably be extremely difficult, if not impossible, to establish in most cases.
64At the same time, that interpretation incentivises air carriers– in the interest of passengers– to fight against all the external factors that could lead to harmful slips or trips on board their aircrafts or on the associated facilities.
65See paragraph40 of that judgment.
66See Court of Appeal, New South Wales (Australia), 20August 2009, Air Link Pty Ltd v Paterson, [2009] NSWCA, §121.
67Or of the person from whom the claimant derives his or her right. Since, in the present case, the claim has been brought by the passenger who sustained bodily injury, I will limit myself to speaking of negligence of the claimant/passenger.
68On the other hand, the rules of evidence are a matter for the national law of the court seised (or ‘lex fori’), subject to the principles of effectiveness and equivalence (see, by analogy, judgment of 9July 2020, Vueling Airlines, C‑86/19, EU:C:2020:538, paragraphs38 to 40).
69Indeed contributory negligence is a common feature of the tort and contract laws of the States Parties. See, for the Member States of the European Union, Von Bar,C. et al. (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR); prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group), Sellier, European Law Publishers, Munich, 2008, volumeIV, bookVI (‘Non contractual liability arising out of damage caused to another’), pp.3636-3656. In addition, that concept is recognised in EU law. See, for instance, in the field of non-contractual liability of the European Union, judgment of 19May 1992, Mulder and Others v Council and Commission (C‑104/89 and C‑37/90, EU:C:1992:217, paragraph33). See also Regulation (EC) No1371/2007 of the European Parliament and of the Council of 23October 2007 on rail passengers’ rights and obligations (OJ 2007 L315, p.14), AnnexI, TitleIV, Chapter1, Article26(2)(b).
70As the German Government observes, the conduct of the claimant does not have to be in breach of some legal rule. The wording of Article20 is broader.
71See, by analogy, American Restatement of Torts, Second, §463b.
72The objective standard of the reasonably diligent person is a recurring feature of the laws of States Parties. See, for instance, in French and Italian law, the rather old-fashioned ‘bon père de famille’ and ‘buon padre di famiglia’ (good father) and, in Common law, the ‘reasonable man’. See also, for an example in EU law, the ‘diligent economic operator’ (see judgment of 12July 2011, L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraphs120 and 122).
73See points13 to 15.
74See High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom), 31July 2019, Carmelo Labbadia v Alitalia (Societa Aerea Italiana S.p.A), [2019] EWHC 2103 (Admin), §§43 and 44.
75Regulation of the European Parliament and of the Council of 11February 2004 repealing Regulation (EEC) No295/91 (OJ 2004 L46, p.1). I recall that, pursuant to that provision, an air carrier is not obliged to pay the EUR600 of compensation provided for in Article7 of that regulation in case of cancellation of a flight, if it proves that that cancellation was due to ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’.
76Thus treading the fine line that separates the interpretation of EU law (for which the Court is competent within the context of the preliminary ruling procedure) from its application (for which it is not). In that respect, I share the views expressed by Advocate General Bobek in his Opinion in Consorzio Italian Management and Catania Multiservizi(C‑561/19, EU:C:2021:291, points139 to 149).
77By contrast, under Article21(1) of the Warsaw Convention, the court may exonerate the carrier when contributory negligence is established, to the extent that the lex fori provides so.
78See points15 and 40.
79This reasoning assumes, of course, that JR’s fall does constitute an ‘accident’ within the meaning of Article17(1) of the Montreal Convention.
80See, for instance, Law Reform (Contributory Negligence) Act 1945 (c.28), §1.
81See points24 and 40.
82See, to that effect, United States District Court, S.D. New York, 7July 1992, Eichler v. Lufthansa German Airlines, 794 F.Supp. 127 (S.D.N.Y. 1992), §§3-5. Therefore, it is not a matter of comparing the respective conduct of the passenger and of the carrier, as the referring court did.
83For instance, if the passenger, whilst descending the boarding stairs, was wearing flip-flops, carrying two heavy suitcases and looking to the sky, thus ending up slipping on an otherwise easily avoidable wet spot. That said, I repeat that, in my view, when the claimant falls for no ascertainable reasons, such as in the present case, there is no ‘accident’ within the meaning of Article17(1) of the Montreal Convention. If the Court were to take a different approach, then I would follow the logic put forward by the referring court and the German Government. If nothing but the negligence of the claimant explains the fall, then the carrier should be wholly exonerated from the liability stemming from that ‘accident’.