The Supreme Court requires that the conditions laid down in Article 19 of the Montreal Convention of 28 May 1999 for the Unification of Certain Rules Relating to International Carriage by Air should be strictly be characterized.
The Supreme Court also held that the application of Article 19 of this convention excludes the disclaimer of liability of Article 1148 of the French Civil Code.
Court of Cassation, Chambre civile, 1ère, March 13, 2013, No. 09-72962
A bank wished to organize a trip in Rome for 94 guests to attend a match between Italy and France. The match was scheduled to start in Rome at 14:00, 19 March 2005.
This project was given to an event management company.
This event management company had outsourced the organization aspects with two travel agencies, one Italian and the other French.
The French travel agency’s task was to take charge of chartering an aircraft for transport to / from 94 people from Bordeaux to Rome. The start took place on the morning of the match. The return was scheduled the next day.
The chartered plane was however late in Bordeaux.
The plane was to be used was the morning at the airport of Rennes for freight transport. It was then supposed to be routed to Roissy to be configured for the transport of passengers and sent to Bordeaux.
A fog prevented the departure of the aircraft from Rennes Airport until 12:00.
It has been proposed to delay the departure of the flight from Bordeaux to 16:00 or 2 hours after the start of the rugby match in Rome but delayed departure was refused.
The flight and the trip has finally been canceled. The guests weren’t able to attend their Rugby match in Rome.
The event management company undertook legal proceeding to claim redress for the damage considering that the French travel agency had breached its contractual obligations.
The claims were based on the system of French contractual liability law (Article 1147 of the Civil Code) and the specific regime of responsibility of air carriers (Article 19 of the Warsaw Convention).
The travel agency defense tried to avoid responsibility by invoking:
– Article 1148 of the Civil Code, and the existence of a force majeure or fortuitous event,
– Article 20 of the Warsaw Convention, which provides that
1. The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
2. In the carriage of goods and luggage the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that, in all other respects, he and his agents have taken all necessary measures to avoid the damage.
The Court of Appeal of Bordeaux ruled that the travel agency had failed to fulfill its obligations because of force majeure event with the conjunction of two circumstances:
– The fact that the plane was at Rennes in the morning and it was imperative to go through Roissy to welcome passengers departing from Bordeaux.
– The fact that the takeoff from Rennes’ airport was impossible up to 12:00 due to heavy fog.
The event management company considered that the lean rotation system of this plane could not be used as an argument to release the carrier from its contractual duties. Force majeure hadn’t been correctly characterized by the Appeal Court according to the Event management company.
The Supreme Court censured this appeal decision.
The Supreme Court held that the Court of Appeal had not characterized that Conditions of article 19 of the Montreal Convention of 28 May 1999 for the Unification of Certain Rules Relating to International Carriage by Air were met.
Article 19 of the Montreal Convention provides that:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
To release itself from liability the carrier must:
– Either prove that it and its servants and agents took all measures that could reasonably be required to avoid the damage
– Either show that it was impossible to take measure to prevent damage.
The Court of Cassation held that the Court should have determined if all measures had been taken to reasonably prevent damage.
Such measures which exclude the carrier’s liability should naturally be strictly interpreted. The Supreme Court in this decision seems to impose this restrictive reading of the conditions laid down by the Montreal Convention to release an air carrier from its liability.
The Supreme Court has also held that Article 19 of the Montreal Convention excluded the application of Article 1148 of the Civil Code. If the Montreal convention applies, the French civil rules which release a party of its liability are not applicable.
By Olivier Vibert, Attorney, Paris