Employer’s duty of care for the death of an employee in connection with an aircraft accident

Cassley & Ors v GMP Securities Europe LLP & Ors [2015] EWHC 722 (QB)
High Court, Mr Justice Coulson, 31 March 2015

The Judge concluded that, although the employer, GMP, had failed in their duty to Mr Cassley, if they had done what they should have done, he would still have been on the flight that crashed at Avima on the morning of 19 June 2010. The accident, and the causes of the accident, was not reasonably foreseeable and/or too remote in law. The claimants seek to make GMP liable for the selection of Aero-Service as the carrier for the flight, and the manner in which that flight was executed when GMP was two steps removed from that decision. The manner in which the charter was executed was the responsibility of the pilots.

There is no general liability on a defendant for the action of a third party unless what happened was a “highly likely” consequence of the actions of that third party. That is not this case: the actions of the pilots that caused the accident were not ‘highly likely’. In those circumstances, the duty owed by GMP did not extend to the performance of the carrier once the flight had started: again that is consistent with the judgment of Hamblen J in Dusek. Or to put the same proposition in another way, no risk assessment performed by GMP would have identified the risk of pilot error, which was the primary cause of the accident.

For further UK case law, see our United Kingdom – Cases page.

2015: Volume 40(2) of Air & Space Law now available

2015: Volume 40(2) of Air & Space Law now available

The second issue of Volume 40 contains the following articles:

Peter Hulsroj, ‘Peter Hulsroj on Handbook of Space Law, edited by Frans von der Dunk with Fabio Tronchetti’ (2015) Air & Space Law, Vol. 40(2), 203–206

Geoffrey Deasy, ‘EU Competition Law Developments in the Aviation Sector: July to December 2014′ (2015) Air & Space Law, Vol. 40(2), 165–202

George N. Tompkins, ’2014 Summary of MC99 Court Decisions’ (2015) Air & Space Law, Vol. 40(2), 147–164

Vincent Correia and Noura Rouissi, ‘Global, Regional and National Air Passenger’ (2015) Air & Space Law, Vol. 40(2), 123–146

Stefan A. Kaiser, ‘Legal Considerations about the Loss of Malaysia Airlines Flight MH 17 in Eastern Ukraine’ (2015) Air & Space Law, Vol. 40(2), 107–121

For further articles on or related to aviation law, see our Articles page.

2015: Volume 40(1) of Air & Space Law now available

The first issue of Volume 40 contains the following articles:

Ida Bagus Rahmadi Supancana, ‘How the Progressive Development of Outer Space Law Affects the Formulation of National Space Legislation: The Experience of Indonesia’ (2015) Air & Space Law, Vol. 40(1), 93–106

George N. Tompkins, ‘A Tribute to the Legacy of Or Wassenbergh The Flight of the 1999 Montreal Convention—On Course?—Stalled?—Encountering Turbulence?—The Course Ahead’ (2015) Air & Space Law, Vol. 40(1), 83–92

Berend Crans, ‘The World According to Or – First and Foremost a Tribute to Henri A. Wassenbergh but also Flagging some Strange Inconsistencies in Aviation Law’ (2015) Air & Space Law, Vol. 40(1), 71–81

P.P.C. Haanappel, ‘Regulatory Developments at the European Union (EU) and World Trade Organization (WTO) Levels’ (2015) Air & Space Law, Vol. 40(1), 65–69

Prachee van Brandenburg-Kulkarni, ‘‘Sixth Freedom’ Revisited in the Twenty-First Century’ (2015) Air & Space Law, Vol. 40(1), 55–63

Roderick van Dam, ‘The Long and Winding Road: Air Traffic Management Reform in Europe’ (2015) Air & Space Law, Vol. 40(1), 43–54

Chia-Jui Cheng, ‘Henri A. Wassenbergh’s Contribution to the Development of Modern International Air Transport Policy and Law’ (2015) Air & Space Law, Vol. 40(1), 15–42

Bin Cheng, ‘Henri Wassenbergh on Air and Space Law: An Appreciation’ (2015) Air & Space Law, Vol. 40(1), 9–13

For further articles on or related to aviation law, see our Articles page.

Meaning of ‘passenger’ under EU air carrier insurance regulation and Montreal Convention

Wucher Helicopter GmbH and Euro-Aviation Versicherung AG v Fridolin Santer
C-6/14, CJEU, 26 February 2015

References for a preliminary ruling — Regulation (EC) No 785/2004 — Air carriers and aircraft operators — Insurance — Requirements — Definitions of ‘passenger’ and ‘member of the crew’ — Helicopter — Carriage of an expert in the blasting of avalanches using explosives — Injury suffered during a work flight — Compensation

The request for a preliminary ruling concerned the interpretation of Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators and Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’).

The request was made in ‘revision’ proceedings between Wucher Helicopter GmbH, an Austrian air carrier (‘Wucher’) and Euro-Aviation Versicherungs AG (‘Euro-Aviation’), a German insurance company and Mr Santer, concerning compensation for Mr Santer for an injury suffered in an accident which occurred on a flight.

The Oberster Gerichtshof referred the following questions to the Court for a preliminary ruling:

1. Is Article 3(g) of [Regulation No 785/2004] to be interpreted as meaning that the occupant of a helicopter held by a Community air carrier,
– who is carried on a contractual basis (specifically: a contract between the air carrier and the occupant’s employer),
– but who is carried for the purpose of a particular job of work (specifically: the blasting of avalanches)
and
– who is involved in that operation as a “guide familiar with the terrain” and must at the pilot’s direction open the helicopter door during the flight and then hold it open in a particular manner and for a particular period of time,

(a) is a “passenger”
or
(b) ranks among “on-duty members of both the flight crew and the cabin crew”?

2. If Question 1(a) is answered in the affirmative:

Is Article 17(1) of the [Montreal Convention] to be interpreted as meaning that the term “passenger” (German: “Reisender”) in any event includes a “passenger” (German: “Fluggast”) within the meaning of Article 3(g) of Regulation (EC) No 785/2004?

3. If Question 2 is answered in the negative:

Is Article 17(1) of the Montreal Convention to be interpreted as meaning that under the conditions stated in Question 1 the occupant of a helicopter held by a Community air carrier is a “passenger” (“Reisender”)?’

The CJEU held:
1. Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators must be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on the basis of a contract between that air carrier and the occupant’s employer in order to perform a specific task, such as that at issue in the main proceedings, is a ‘passenger’ within the meaning of that provision.

2. Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 on the basis of Article 300(2) EC, approved on behalf of the EC by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that a person who comes within the definition of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17 of that convention, once that person has been carried on the basis of a ‘contract of carriage’ within the meaning of Article 3 of that convention.

For further CJEU case law, see our European Law – Cases page.

Takeover bids and European competition law: Ryanair Holdings v The Competition & Markets Authority

Ryanair Holdings Plc v The Competition And Markets Authority & Anor [2015] EWCA Civ 83
Court of Appeal
Lord Justice Laws, Lord Justice Patten, Lord Justice Floyd
12 February 2015

Takeover bids and European competition law. Ryanair appealed to the Court of Appeal against a decision of the Competition Appeal Tribunal (view here), who rejected previous challenges to the findings of the Competition Commission (CC). Ryanair’s three grounds of appeal were:

(1) it was procedurally unfair for the CC to have refused to disclose to Ryanair (or its external lawyers) the material allegations and evidence relied upon by the CC in reaching the conclusion that Ryanair might affect Aer Lingus’s ability to participate in a combination with another airline. Particular weight was attached to the evidence of other airlines but their identities and the underlying evidence were withheld from Ryanair despite its requests for their disclosure. It was therefore denied a fair opportunity to respond;

(2) the decision to require divestiture of all but 5% of the minority stake involved a breach of the duty of sincere co-operation under Article 4(3) of the Treaty on European Union (“TEU”) because of a material risk of conflict between the order and a future decision of the European Commission (following the appeal to the General Court) that Ryanair should be permitted to bid for 100% of Aer Lingus; and

(3) The divestiture remedy was disproportionate and was imposed by the CC on the basis of a misdirection as to the degree of risk of an SLC occurring that has to be found before a remedy can be imposed and which dictates the type of remedy required.

Appeal dismissed.

For further UK case law, see our United Kingdom – Cases page.

Application for annulment of Decision 2013/199/EU concerning differentiated air travel tax rates implemented by Ireland

Aer Lingus Ltd v European Commission
T-473/12, CJEU, 5 February 2015

State aid — Irish tax on air passengers — Lower rate for destinations no more than 300 km from Dublin — Decision declaring the aid incompatible with the internal market and ordering its recovery — Advantage — Selective nature — Identification of the beneficiaries of the aid — Article 14 of Regulation (EC) No 659/1999 — Obligation to state reasons

Application for annulment of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) concerning differentiated air travel tax rates implemented by Ireland.

Application granted. Article 4 of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland, in so far as it orders the recovery of the aid from the beneficiaries for an amount which is set at EUR 8 per passenger in recital 70 of that decision annuled.

For further CJEU case law, see our European Law – Cases page.

Application for annulment of Decision 2011/708/EU concerning an international air transport agreement

European Commission v Council of the European Union C-28/12

Opinion of Advocate General Mengozzi, 29 January 2015

Action for annulment — Article 218 TFEU — Decision on the signing and provisional application of international agreements — Hybrid decision of the Council and of the Representatives of the Governments of the Member States — Alternative procedure — Voting rules — Obligation of sincere cooperation — Principle of the organisational autonomy of the institutions — Unified representation of the European Union

Application for annulment of Decision 2011/708/EU, adopted on 16 June 2011 by the Council and the Representatives of the Governments of the Member States of the European Union, meeting within the Council on the signing on behalf of the EU and provisional application by the EU and its Member States of two international agreements in the field of air transport.

The Advocate General proposed that the CJEU should:

1) annul Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part;

2) maintain the effects of Decision 2011/708 until the adoption of a new decision;

3) order the Council of the European Union to pay the costs;

4) order the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Italian Republic, the Kingdom of the Netherlands, the Republic of Poland, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

For further CJEU case law, see our European Law – Cases page.

Judicial review of UK Government’s arrangements for overseeing & regulating the use of a military airport

Oxford Aviation Services & Anor, R (On the Application Of) v Secretary of State for Defence Civil Aviation Authority & Anor [2015] EWHC 24 (Admin)
High Court, Mr Justice Popplewell, 23 January 2015

Judicial review of the Government’s arrangements for overseeing and regulating the use of Northolt Airport (“RAF Northolt”) by civil aircraft in order to determine whether they are lawful, particuarly in respect of safety. The case was not concerned with whether RAF Northolt met appropriate safety standards for such aircraft.

Note: Military airports fall within the responsibility of the Secretary of State for Defence through the Military Aviation Authority, an autonomous body created by Charter, administered within the Ministry of Defence.

For further UK case law, see our United Kingdom – Cases page.

CJEU Judgment in easyJet v European Commission regarding alleged anti-competitive conduct

easyJet Airline Co Ltd v European Commission
T-355/13, CJEU, 21 January 2015

Competition — Abuse of a dominant position — Airport services market — Decision rejecting a complaint — Article 13(2) of Regulation (EC) No 1/2003 — Case dealt with by a competition authority of a Member State — Rejection of the complaint on priority grounds — Decision of the competition authority drawing conclusions, in competition law, from an investigation conducted under national legislation applicable to the sector in question — Obligation to state reasons

Application for annulment of Commission Decision C(2013) 2727 final of 3 May 2013 rejecting the complaint lodged by the applicant (easyJet) against Luchthaven Schiphol NV in relation to alleged anti-competitive conduct in the airport services market (Case COMP/39.869 — easyJet/Schiphol).

Application dismissed.

For further CJEU case law, see our European Law – Cases page.