What constitutes a passenger under the Montreal Convention?

Transcription

1 What constitutes a passenger under the Montreal Convention? What Constitutes a passenger under the Montreal Convention? The European Court of Justice has recently provided further clarification in relation to the definition of passenger under Regulation (EC) No. 785/2004 (which deals with insurance requirements for air carriers and aircraft operators) and under the Montreal Convention on foot of a referral from the Austrian courts. 1 Facts Mr Santer was travelling on a helicopter owned by Wucher. Mr Santer was seriously injured in the course of a flight on the helicopter over a glacier area in Austria. In brief, Mr Santer was employed by Otztaler. He was a member of the Avalanche Commission and was responsible for safety in the glacier area of Solden in Austria and in particular for his employer s ski piste. The Avalanche Commission s role involved deciding whether a piste should be closed and whether an avalanche should be blasted. Blasting is carried out from a helicopter. On the day in question Mr Santer was engaged by his employer for an avalanche blasting flight and during the course of the flight the pilot (an employee of Wucher) flew with Mr Santer and two other employees of Otztaler. Mr Santer directed the pilot to the places where the explosive charges were to be thrown out. His other task was to open the helicopter door when the pilot gave the word and to hold it open as wide and for as long 1 Wucher Helicopter GmbH, Euro-Aviation Versicherungs AG v- Fridolin Santer (Judgment of the Court s First Chamber 26 February 2015)

2 as could be with the blaster sitting behind him, to throw out the charge. A sudden gust of wind gripped the slightly opened door causing it to fly open. Mr Santer was unable to let go of the door loop in time and suffered a serious injury to his elbow joint. Claim He brought a claim for damages seeking compensation from Wucher and its insurer. A question arose as to whether he was actually a passenger or whether he was a member of the cabin crew in this regard. This is relevant because, as a matter of Austrian law, there is a limitation on liability where Mr Santer is deemed to be a member of the cabin crew. Ultimately a referral was made to the ECJ. The questions asked of the ECJ were as follows: 1. Is Article 3(g) of Regulation No.785/2004 to be interpreted as meaning that: 1.1 the occupant of a helicopter held by a Community air carrier 1.2 who is carried on a contractual basis 1.3 but who is carried for the purposed of a particular job of work and 1.4 who is involved in that operation as a guide familiar with the terrain and 1.5 must at the pilot s direction open the helicopter door during the flight and hold it open in a particular manner and for a particular period of time (a) is a passenger (b) or is an on duty member of both the flight crew and the cabin crew. 2. Is Article 17(1) of the Montreal Convention to be interpreted as meaning that the term passenger includes a passenger within the meaning of Article 3(g) of the Regulation 785/2004. For further information please contact: Sarah Conroy Partner T: +353 (0) E: s.conroy@beale-law.com

3 3. 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? Definition of Passenger This includes any person who is on a flight with the consent of the air carrier over the aircraft operator, excluding on duty members of both the flight crew and the cabin crew. Therefore classifying the person as a member of the flight crew and the cabin crew is an exception to the rule under which the person falls within the category of passenger. From a description of the facts the Court determined that as Mr Santer did not perform the tasks of the flight crew of the aircraft he did not fall within the category of a member of the flight crew. He had the task of opening the helicopter door at the pilot s direction. This did not suffice to confirm him the status of a member of the cabin crew. The pilot is always authorised to give instructions to any of the people on board the aircraft, including passengers. It follows that he does not fall within the category of a member of the cabin crew and therefore should be considered to be a passenger within the meaning of Regulation No. 785/2004. Therefore, the ECJ found that Article 3(g) 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 in issue in the proceedings is a passenger within the meaning of that provision. Second question The status of a passenger under the Articles 3.1 and 3.2 of the Montreal Convention is linked to the issues of an individual or collective document of carriage. However under Article 3.5 non-compliance with those paragraphs does not affect the existence or validity of the contract of carriage subject to the rules of that convention including those relating to the limitation of liability.

4 Therefore where a contract of carriage exists and all other conditions are fulfilled it applies irrespective of what form it might take. Mr Santer was an employee of Otztaler in his capacity as a member of the Avalanche Commission responsible for safety in the glacier area on the ski piste performing the task of avalanche blasting as part of his usual tasks. It was also on an contractual basis that Wucher flew Mr Sander and the other employees of Otztaler from the take off location to the places where the avalanche blasting was to take place and then bring them back to the take off location. It follows that the purpose of the flight was the carriage of employees to the places where they had to perform their usual tasks. Therefore it follows that Article 17 means that a person who comes within the definition of passenger within the meaning of Article 3 (g) also comes within the definition of passenger within the meaning of Article 17 once they have been carried on the basis of a contract of carriage. Under Article 17(1) the carrier is liable for damages sustained in the case and death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking. Third question The Convention provides that: The passenger means any person who is on a flight with the consent of the air carrier or the aircraft operator excluding on duty members of both the flight crew and cabin crew. The passenger means any person who is on a flight with the consent of the air carrier or the aircraft operator excluding on duty members of both the flight crew and cabin crew The issue in essence was that if, as a matter of Austrian law, Mr Sander was not a passenger but rather a member of the crew, this would involve the application of Austrian law and social insurance which would limit the employer s liability.

5 Conclusion The Court found that: 1. 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 preform a specific task, such as that at issue in the main proceedings, is a passenger within the meaning of that provision. 2. A person who comes within the definition of passenger for the purposes of the Montreal Convention, also comes within the definition of passenger for the purposes of the Regulation, as long as that person is carried on the basis of a contract of carriage within the meaning of the Convention. The future This decision provides further clarification as to who will be included within the definition of passenger for the purposes of the Convention. Insurers should be aware that there may be a grey area where a person is neither a paying passenger or a member of cabin crew. For further information please contact: Sarah Conroy Partner T: +353 (0) E: s.conroy@beale-law.com January 2016