Damages for delay under the Montreal Convention and EC Regulation 261/2004

Dunbar v easyJet [2015] ScotSC 70

Sheriffdom of North Strathclyde at Paisley
Sheriff Livingston
4 November 2015

This was a claim brought by Ms Dunbar against easyJet in respect of a flight from Glasgow to Malaga on 28th July 2014. Ms Dunbar’s flight was delayed by over 6 hours invoking EC Regulation 261/2004 entitling passengers to compensation for any delay exceeding three hours unless there are both extraordinary circumstances and the delay could not have been avoided even if all reasonable measures had been taken. On the basis of the flight distance, the compensation payable was €400.

The onus was on the easyJet to show that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The Sheriff held that the underlying delay was caused by extraordinary circumstances in that the aircraft in question could not leave Gatwick. This was because of an air traffic control decision which itself seems to have been predicated upon a number of factors. It is clear from Recital 15 of the Regulation referring as it does to “the impact of an air traffic management decision” that it is not for the court to look behind whether that decision was correct or not. The fact the decision is made leading to a delay or cancellation is self-evidently “extraordinary circumstances”.

However, the sheriff concluded, “while the original delay between Gatwick and Bologna was caused by extraordinary circumstances and that by the time of the Pursuer’s flight was due to depart the extraordinary circumstances continued to exist I am not satisfied that the Defender took all reasonable measures to avoid the delay meaning the limit or exclusion of liability set out in Recitals 14 and 15 is not invoked due to deemed extraordinary circumstances not existing”.

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

UK Court of Appeal case on limitation periods and the Montreal Convention

Dawson v Thomson Airways Ltd [2014] EWCA Civ 845

Court of Appeal
Lord Justice Moore-Bick, Lord Justice, Kitchin, Lord Justice Fulford
19 June 2014

Delay – compensation – limitation period – Montreal Convention – Regulation 261/2004 – Limitaton Act 1980

The claim arose out of a delay to a flight from Gatwick to the Dominican Republic in December 2006. Departure was delayed by crew shortages caused by sickness and the flight eventually arrived at its destination over six hours late. Mr. Dawson sought to recover from the airline the amount of €600 per person which under EC Regulation No. 261/2004 is payable as compensation for a flight of that length. Mr. Dawson was awarded £1,488.73 by the Cambridge County Court.

Mr. Dawson began proceedings in December 2012, just before the six year limitation period under section 9 of the Limitation Act 1980 expired. The airline accepted that it would have been liable to make the payment if he had brought proceedings in time, but argued that the claim was out of time and had been discharged by virtue of the two year limitation period contained in article 35 of the Montreal Convention, which governs the liability of carriers by air.

The airline accepted that in the light of the decision in Moré national law governs the question of limitation, but it contended that the application of English law leads one straight back into the Convention with its two year limitation period. Although the English courts are bound to accept the European Court’s decision that there is a right to compensation for delay in cases of this kind, they are not bound to accept and apply the reasoning by which it reached that conclusion and as a matter of English law must follow and apply the decision in Sidhu. Mr. Dawson, on the other hand, contended that the court must follow and apply the decisions of the European Court. The claim falls outside the Montreal Convention and as a matter of domestic law the six year period prescribed by section 9 of the Limitation Act 1980 applies.

The Court of Appeal held that it was bound to follow and apply the decisions of the European Court in relation to the nature of the claim for compensation under article 7 and its compatibility with the Montreal Convention, which included the Court’s ruling that the obligation in question lies outside the scope of the Convention. The European Court had ruled on the nature of the obligations created by Regulation 261 and its decisions had to be taken into account when deciding whether the claim fell within the scope of the Convention.

The airline’s appeal was dismissed.

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

Supreme Court rules on the issue of damages for disability discrimination

Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15
UK Supreme Court
Lord Neuberger, Lady Hale, Lord Reed, Lord Hughes, Lord Toulson
5 March 2014

Watch the judgment being handed down here: http://www.youtube.com/watch?v=U76J4GilB-A

The issue was whether a court may award damages for a claimant’s discomfort and injury to feelings caused by a breach of the UK Disability Regulations. The conclusion of the lower courts was that any such award is precluded by the Montreal Convention, as adopted in the EU by the Montreal Regulation (or, to use its full title, “Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, as amended by Parliament and Council Regulation (EC) No 889/2002”).

Lord Toulson, with whom the other judges agreed, held that:
The claim (in question) was for damages for the humiliation and distress which Mr Stott suffered in the course of embarkation and flight. The particulars of injury to Mr Stott’s feelings and the particulars of aggravated damages related exclusively to events on the aircraft. In the course of argument it was suggested that Mr Stott had a complete cause of action before boarding the aircraft based on his poor treatment prior to that stage. If so, it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention, but that was not the claim advanced. Mr Stott’s subjection to humiliating and disgraceful maltreatment which formed the gravamen of his claim was squarely within the temporal scope of the Montreal Convention. It is no answer to the application of the Convention that the operative causes began prior to embarkation. To hold otherwise would encourage deft pleading in order to circumvent the purpose of the Convention. Many if not most accidents or mishaps on an aircraft are capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention explained by Lord Hope in Sidhu to hold that it does not apply to an accident or occurrence in the course of international carriage by air if its cause can be traced back to an antecedent fault.

The [Montreal] Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation. The answer to that general question also covers the more specific question.

Under the law as it stands, a declaration that the carrier was in breach of the UK Regulations is likely to be small comfort to a passenger who has had Mr Stott’s experience, but I draw attention, as did Sotomayor CJ at the end of her opinion in King v American Airlines, to the fact that there are other possible means of enforcement. It is for the Civil Aviation Authority to decide what other methods of enforcement should be used, including possible criminal proceedings.

The embarrassment and humiliation which Mr Stott suffered were exactly what the EC and UK Disability Regulations were intended to prevent. I share the regret of the lower courts that damages are not available as recompense for his ill-treatment and echo their sympathy for him, but I agree with the reasoning of their judgments and would dismiss this appeal.

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