ECJ Advocate General on the Montreal Convention

Mar 3, 2023 Benn-Ibler Rechtsanwälte

The Advocate General of the European Court of Justice gave opinion on questions concerning the scope of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter MC).

The plaintiff had been a passenger on an Austrian Airlines flight from Tel Aviv to Vienna. During the flight, a pot of coffee fell from a serving trolley. Hot coffee was spilled out, scalding the plaintiff. The flight attendants provided first aid. Because of his injury, the plaintiff sued Austrian Airlines for damages and a declaration of liability for future damages. He argued that Austrian Airlines was liable under Austrian law not only for the negligence of the flight attendants leading to the toppling of the pot, but also for their subsequent alleged insufficient medical first aid.

According to Art 17 (1) MC, an airline is liable for the death of or personal injury to a passenger if these are caused by an accident on board the aircraft.

The claim was dismissed. According to the Vienna Higher Regional Court, the MC is applicable. Since the latter provides for a two-year limitation period, the claim was already time-barred. The plaintiff appealed against this ruling to the Austrian Supreme Court.

The Austrian Supreme Court suspended the proceedings and referred the case to the ECJ for a preliminary ruling. The issue in dispute was whether the MC precludes claims under domestic law and whether the allegedly inadequate initial medical care constitutes an accident.

The Advocate General opined that Art 29 of the Convention states that a claim that fulfils the requirements of Art 17 of the Convention (bodily injury or death as a result of an accident on board an aircraft) can only be brought under the Convention. If it were permissible to also file parallel proceedings under national civil law, the purpose of the Convention would be defeated.

Furthermore, the Advocate General believes that failure to provide adequate medical care does not in itself constitute an accident, nor is this even relevant to the decision. Rather, it is already sufficient for an accident that the toppling of the coffee pot contributed adequately to the injury.

Opinion, C-510/21 (12.01.2023)