OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 20 January 2022(1)
Case C‑589/20
JR
v
Austrian Airlines AG
(Request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))
(Reference for a preliminary ruling – Air transport – Montreal Convention – Article 17(1) – Liability of air carriers for death or bodily injuries sustained by passengers – Requirements of a causal ‘accident’ taking place ‘in the course of any of the operations of … disembarking’ – Passenger falling on the boarding stairs whilst disembarking – Article 20 – Contributory negligence defence – Failure of the passenger to hold on to the handrails)
I. Introduction
1. The present case touches upon the day-to-day hazard of harmful trips and slips. It raises, more precisely, the issue of whether, and, if so, to what extent, air carriers are liable when those unfortunate occurrences happen to passengers on board an aircraft or on facilities used to embark or disembark it.
2. In that respect, the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) has referred to the Court of Justice two questions on the interpretation of Article 17(1) and Article 20 of the Convention for the Unification of Certain Rules for International Carriage by Air (2) (‘the Montreal Convention’). Those questions have been submitted in the context of a claim for damages brought by JR, a passenger on an international flight, against Austrian Airlines AG, the carrier who sold and operated that flight, concerning injuries sustained when she fell, for no ascertainable reason, on the boarding stairs whilst disembarking.
3. The first question is about whether such a fall constitutes an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, which incurs the liability of the air carrier pursuant to that provision. The second question concerns whether, in that context, the passenger’s failure to hold on to the handrails attached to the boarding stairs amounts to contributory negligence on his or her part, exonerating the carrier from its liability pursuant to Article 20 of that convention. In this Opinion, I will explain why both questions call, in my view, for a nuanced, case-by-case answer.
II. Legal framework
A. The Montreal Convention
4. The third recital of the Montreal Convention states that the States Parties ‘[recognise] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’.
5. The fifth recital of that Convention states that ‘collective State action for further harmonisation and codification of certain rules governing international transport by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.
6. Article 17 of the Montreal Convention, entitled ‘Death and injury of passengers – damage to baggage’, provides in paragraph 1 that ‘the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
7. Pursuant to Article 20 of that convention, entitled ‘Exoneration’, ‘if the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. … This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21’.
8. Article 21 of the Montreal Convention, entitled ‘Compensation in case of death or injury of passengers’, reads as follows:
‘1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.’
B. European Union law
9. Article 3(1) of Council Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, (3) as amended by Regulation (EC) No 889/2002 (4) (‘Regulation No 2027/97’), states that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’.
III. Facts, national proceedings and the questions referred
10. On 30 May 2019, JR, her husband and their two-year-old son travelled from Thessaloniki (Greece) to Vienna (Austria) on a flight operated by Austrian Airlines, pursuant to a contract of carriage by air concluded with that company.
11. After landing at Vienna International Airport, the aircraft was stationed in an outside disembarking position. Uncovered boarding stairs with a handrail on each side were positioned at both the front and rear of the aircraft to allow the passengers to disembark. JR and her family allowed other passengers to go first before themselves using the stairway at the front. JR’s husband started descending the steps first, holding a piece of wheeled hand luggage in each hand. He almost fell on the lower third of the stairs but managed to stay on his feet. JR then followed, holding her handbag in her right hand while carrying her son in her left arm. She fell where her husband had almost fallen previously, hitting the edge of the stairway. She suffered a fracture of her left forearm and a haematoma on her buttocks.
12. JR brought an action against Austrian Airlines before the Bezirksgericht Schwechat (District Court, Schwechat, Austria), seeking damages of EUR 4 675.00 plus interest and costs. In essence, she claimed that, pursuant to Austrian law, the carrier was liable for the injuries she suffered since it had breached its contractual obligation to ensure the safety of passengers. (5) In that respect, JR submitted that, when passengers are to disembark outside, it is standard practice for the carrier to provide covered boarding stairs and to ensure that these are not greasy or slippery. In this case, despite the rain, Austrian Airlines had used uncovered stairs, thus increasing the risk that someone may slip on the wet stairs. Moreover, the step on which JR slipped was, according to her, oily and/or greasy. Indeed, the stairs were so slippery that her husband almost fell in the exact same spot where she did in fact fall, despite the fact that, after having seen her husband’s near fall, she took special care by picking up her son in her arm to prevent him from slipping and walked down very carefully.
13. In its reply, Austrian Airlines submitted, first, that it did not breach its obligation of safety. The use of boarding stairs equipped with perforated/corrugated treads to reduce the risk of slipping ensured that the passengers could disembark without risk. Furthermore, the stairs in question were in good technical condition and were not wet, oily or greasy and therefore not slippery. Secondly, and in any event, it could reasonably be expected of JR to hold on to the handrails, especially as she had just witnessed the near fall of her husband. In addition, it cannot be ruled out that her fall happened specifically because she was holding her son. Thirdly, JR chose not to seek further treatment in a nearby hospital immediately after the incident, despite the medical instructions and advice given to her, but instead travelled back to Linz (Austria), where she did not seek treatment until late into the evening of 30 May 2019. As such, it cannot be ruled out that her injuries were not aggravated by the delay in treatment.
14. By judgment of 15 March 2020, the Bezirksgericht Schwechat (District Court, Schwechat) dismissed the action in its entirety. In addition to the facts summarised above in point 11, that court further established that approximately 60 passengers had used the boarding stairs to disembark before JR, none of which had slipped or complained about their slipperiness. The steps were made of corrugated sheet metal, which ensures a particular non-slip quality. Such stairs are in constant use at Vienna International Airport, where no covered stairs are available. In addition, those pieces of equipment are certified and the boarding stairs at issue were in good condition and showed no signs of defects or damage. On the day in question, while the steps were indeed damp because it had rained earlier, they could not be considered as being wet given that it was not raining at the time when the passengers disembarked. Nor were they oily, greasy, or in some way covered by large areas of dirt. Isolated, small dot-shaped pieces of dirt of unknown consistency were found on the last three steps only, but it could not be established that those pieces of dirt were slippery or even that chewing gum had become stuck to the steps. Lastly, JR had watched her husband almost fall and then proceeded to fall herself in the same spot. Aside from the fact that neither of them had used the handrails, it was not possible to establish why the claimant fell.
15. In the light of those facts, and in accordance with Austrian law, the first-instance court ruled that Austrian Airlines had not breached its obligation of safety. An air carrier need take only those measures that can be reasonably expected of it. In that respect, the use of boarding stairs with non-slip surfaces was sufficient to ensure that passengers could disembark the aircraft without risk. In any event, every passenger should look where he or she is going. Having just witnessed the near fall of her husband, JR did not take any precautions to prevent her own fall. It would have been reasonable for her to pause and then use the handrail before continuing her descent. It would also have been possible for JR to seek the help of her husband. Her failure to reach for the handrail even though a risk had already been identified meant that her fall was primarily her own fault.
16. JR lodged an appeal against that judgment before the Landesgericht Korneuburg (Regional Court, Korneuburg). That court notes that Austrian Airlines’ liability must be assessed not by reference to Austrian law, but to the conditions set out in the Montreal Convention. In that respect, it doubts that a fall such as the one that JR experienced qualifies as an ‘accident’ within the meaning of Article 17(1) of that convention, as defined in the judgment in Niki Luftfahrt. (6) In any case, it wonders whether the negligence of the passenger – who failed to hold on to the handrails – exonerates the carrier from any liability pursuant to Article 20 of the convention.
17. Against that background, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 17(1) of [the Montreal Convention] to be interpreted as meaning that the concept of “accident” within the meaning of that provision covers a situation in which a passenger falls on the last third of a mobile boarding stairway when disembarking from an aircraft – for no ascertainable reason – and sustains an injury, which was not caused by an object used when serving passengers within the meaning of [the judgment in Niki Luftfahrt], and there was no defect in the quality of the stairway, which, in particular, also was not slippery?
(2) Is Article 20 of [the Montreal Convention] to be interpreted as meaning that any liability on the part of the air carrier ceases to exist in its entirety if circumstances such as those described in [question] 1 exist and the passenger was not holding on to the handrail of the stairway at the time of the fall?’
18. The request for a preliminary ruling, dated 15 September 2020, was received at the Court on 10 November 2020. JR, Austrian Airlines, the German Government and the European Commission lodged written submissions before the Court. No hearing was held in the present case.
IV. Analysis
19. The Montreal Convention is a treaty setting out uniform rules governing international carriage by air. Therein, it notably defines the obligations of air carriers towards passengers with whom they have concluded a contract of carriage. As that convention was concluded by, inter alia, the European Union, (7) it has been an integral part of the EU legal order from the date it entered into force in so far as the EU is concerned, namely 28 June 2004. Accordingly, from that date, the Court has had the jurisdiction to give a preliminary ruling concerning its interpretation. (8)
20. As the referring court rightly observes, (9) the Montreal Convention applies in the main proceedings. Indeed, JR concluded a contract of carriage with Austrian Airlines and that contract concerned an ‘international carriage’, within the meaning of Article 1 of the convention, as the place of departure and the place of destination of that flight are situated within the territories of two States Parties, namely the Hellenic Republic and the Republic of Austria. (10)
21. Chapter III of the Montreal Convention contains various provisions relating to the liability of air carriers. In particular, Article 17(1) deals with their liability in case of ‘death or bodily injury’ of passengers. In the present case, it is not disputed that the fracture and haematoma sustained by JR (11) in her passenger capacity and for which she seeks compensation from Austrian Airlines constitute such ‘bodily injuries’.
22. JR’s claim thus falls neatly within the scope of Article 17(1) of the Montreal Convention. Moreover, in such a case, that provision applies exclusively. Indeed, pursuant to Article 29 of the convention, whatever the cause(s) of action invoked by the plaintiff to support his or her claim – domestic tort law, contractual liability, and so on – it must fulfil the conditions and limits of liability set out in that treaty or else be dismissed. In other words, ‘if a remedy for the injury is not available under the Convention, it is not available at all’. (12) Hence, although JR’s claim is based on the Austrian rules of civil liability, its success depends ultimately not on the content of those rules, but on the proper construction of the convention. (13)
23. In that respect, Article 17(1) of the Montreal Convention provides that the injured passenger has a claim against the air carrier ‘upon condition only that the accident which caused the … injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
24. When those requirements are satisfied, the defences available to the carrier are rather limited and vary depending on the amount of damages to be awarded to the plaintiff. If the value of the claim does not exceed 100 000 Special Drawing Rights (SDR), (14) Article 21(1) of the Montreal Convention states that the air carrier ‘shall not be able to exclude or limit its liability’. If the claim is over and above that threshold, the carrier may, pursuant to Article 21(2) of the convention, limit (15) its liability by proving, in essence, that the passenger’s injury was not due to its fault/negligence. It is common ground that JR’s claim does not exceed 100 000 SDR, so that Austrian Airlines could not, in any event, avail itself of that particular defence.
25. Nevertheless, despite what the seemingly unqualified wording of Article 21(1) of the Montreal Convention suggests, another defence remains available to a carrier in that situation. It may, in fact, exclude or limit its liability – only – by proving contributory negligence on the part of the plaintiff, pursuant to Article 20 of the convention. Indeed, that provision applies to all cases of damage referred to in that treaty, including ‘bodily injury’ of a passenger, even when the claim’s value does not exceed 100 000 SDR. (16)
26. In that context, the questions submitted to the Court relate to the claim’s conditions (Article 17(1)) and its defence (Article 20). The first question is about the proper construction of the concept of ‘accident’ within the meaning of the former provision. The second question concerns the issue of contributory negligence envisaged in the latter. Article 17(1) has already been interpreted by the Court, in particular in the judgment in Niki Luftfahrt. Article 20 has not. Overall, an answer to the questions submitted cannot be conclusively deduced from the existing case-law, although some general lessons can.
27. First, the concepts contained in the Montreal Convention, such as ‘accident’ and ‘negligence’, must be interpreted uniformly and autonomously, in accordance with the rules of interpretation of general international law, which are binding on the European Union. (17)
28. In that respect, secondly, these concepts must be construed following the rules of customary international law, as codified in the Vienna Convention on the Law of Treaties of 23 May 1969. (18) The relevant provisions of the Montreal Convention must therefore be interpreted in good faith in accordance with the ordinary meaning to be given to their terms in their context and in the light of its object and purpose (19) – which include ‘ensuring protection of the interests of consumers in international carriage by air’ while maintaining an ‘equitable balance’ between these last interests and those of air carriers. (20)
29. I would add, as a third point, that, since the Court is only one of the jurisdictions competent to interpret the Montreal Convention, and since the uniform application of that convention in all the States Parties is an ideal to be pursued, it is appropriate for the Court, when ruling on concepts such as ‘accident’ and ‘negligence’, to take into account, and draw inspiration from, the decisions handed down by the courts of those States Parties. (21)
30. I will discuss, in the next sections, the questions submitted in the light of these general considerations. Before that, however, I shall make one last remark, relating to the facts of the present case. It is apparent from the order of reference that, while some of those facts are common ground, the parties to the main proceedings dispute other circumstances, namely whether the boarding stairs in question were wet, greasy or oily and thus slippery, and whether that was the reason for JR’s fall. They also disagree as to whether JR was negligent for not holding on to the handrails. (22) Nevertheless, national courts have already established and assessed all those facts. They have found that the stairs were not slippery nor defective in any way, that it was thus impossible to establish why JR fell and that she was indeed negligent. (23) The Court is required to rule on the interpretation requested on the basis of those findings. (24) I will do the same in this Opinion.
A. On falls and ‘accidents’ within the meaning of Article 17(1) of the Montreal Convention (first question)
31. Two cumulative requirements flow from the wording of Article 17(1) of the Montreal Convention. For the air carrier to be liable, the ‘bodily injury’ sustained by the passenger must (i) have been caused by an ‘accident’ (ii) that took place ‘on board the aircraft’ or ‘in the course of any of the operations of embarking or disembarking’.
32. The second requirement is not the issue here. The referring court assumes that it is satisfied and thus did not submit any question on that matter. Austrian Airlines nonetheless disputes that point before the Court. It submits, in essence, that the concepts of ‘embarking’ and ‘disembarking’ within the meaning of Article 17(1) of the convention should be limited to the process of passing the threshold of the aircraft at the point of embarkation or disembarkation, that is to say stepping inside or outside the aircraft, from or to the boarding stairs or jetway. Hence, when JR fell in the lower third of the stairs she was no longer ‘disembarking’. For the sake of providing the national court with a useful answer, I shall briefly address this argument.
33. The Montreal Convention does not offer any definition of the concepts of ‘embarking’ or ‘disembarking’ contained in Article 17(1). That said, following the rules of interpretation restated in point 28 above, I see no reason why they should be construed in the narrow way suggested by Austrian Airlines. First, in its ordinary meaning, the term ‘embarking’ relates, in a broad sense, to the act of getting passengers (or cargo, and so on) on an aircraft (or a vessel, and so on) before a journey, whereas ‘disembarking’ means the opposite. Secondly, the terms ‘any of the operations’ used in Article 17(1) (25) convey the intention of the drafters of the convention to cover, with those concepts, a broad range of situations, clearly not limited to the act of stepping inside or outside the aircraft – or even the act of walking up or down boarding stairs for that matter. Thirdly, on that last point, it is arguable that within the context of modern air travel, ‘embarking’ and ‘disembarking’ are complex processes, often involving many gates, corridors, shuttles and stairs before one reaches his or her seat or, conversely, finally sets foot in a given country. Fourthly, the object and purposes of the Montreal Convention also call for a broad view. If Austrian Airlines’ view were correct, the effet utile of Article 17(1) would, on the contrary, be limited quite drastically. Accordingly, national courts have understood these concepts as being wide enough to encompass, in the interests of passengers, events taking place on the tarmac, in shuttle buses conveying them to aircrafts or airport terminals, or even inside ‘sterile areas’ of those terminals, as long as – in the interests of air carriers – the passengers are under the control of the carrier’s personnel when these happen. (26) In summary, the concept of ‘disembarking’ within the meaning of Article 17(1) obviously includes, but is not limited to, descending the boarding stairs after landing.
34. The thorny issue concerns the first requirement. In essence, by its first question, the referring court wonders whether the concept of ‘accident’ within the meaning of Article 17(1) of the Montreal Convention covers a situation in which a passenger falls on the boarding stairs whilst disembarking, even if the reason for his or her fall cannot be established and, in particular, it was not due to ‘an object used when serving passengers’ or any defect or slipperiness of the stairs.
35. I recall that the Montreal Convention does not define the concept of ‘accident’ contained in Article 17(1). National courts use, in that respect, a definition stated more than 30 years ago vis-à-vis Article 17 of the Warsaw Convention. In its seminal decision in Air France v. Saks, (27) the United States Supreme Court interpreted that concept as covering ‘an unexpected or unusual event or happening that is external to the passenger’. In the judgment in Niki Luftfahrt, the Court provided its own definition. It ruled that, in accordance with the ordinary meaning of that term, an ‘accident’ is an ‘unforeseen, harmful and involuntary event’. (28) The only substantive difference between these two definitions lies in the ‘externality’ criterion, introduced in the first but seemingly absent from the second, a point which I shall return to below. (29)
36. It also follows from a majority of national decisions and the judgment in Niki Luftfahrt that, as the carrier is liable for a passenger’s injury under Article 17(1) ‘upon condition only’ that it was caused by an ‘accident’ that took place on board the aircraft or in the process of embarking or disembarking, no additional conditions of liability shall be ‘forced’ into that concept – otherwise the simple logic of that provision would be distorted.
37. In particular, first, as the Court expressly stated in that judgment, the carrier’s liability pursuant to Article 17(1) of the Montreal Convention shall not depend on whether the passenger’s injury is due to the materialisation of a hazard typically associated with aviation. Although some national courts have taken the opposite view, the Court rightly observed that reading such a condition in the concept of ‘accident’ would be consistent neither with its ordinary meaning nor with the objectives pursued by the convention. (30) Thus, the argument raised by Austrian Airlines that falling down the stairs is – undeniably – a hazard of everyday life is irrelevant in answering the question submitted by the referring court.
38. Secondly, whether or not the passenger’s injury was caused by ‘an object used when serving passengers’, as mentioned by the referring court in its first question, is also irrelevant in my view, although in that court’s defence, some ambiguity exists on that point. After all, the Court did state in the judgment in Niki Luftfahrt that the concept of ‘accident’ within the meaning of Article 17(1) ‘covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger’. (31)
39. However, I strongly doubt that the Court intended, by that statement, to constrict that concept with a new condition, foreign to the wording of Article 17(1), having just dismissed another one in the same judgment. (32) In my view, that statement is rather intended to be an abstract description of the circumstances at stake in that case – which involved a disposable cup of hot coffee, served by the carrier’s personnel, tipping from a tray table and causing scalding to a passenger. Many events taking place on board aircrafts or in the process of embarking or disembarking may meet the definition of an ‘accident’, as set out in point 35 above, even if they may not involve ‘objects used when serving passengers’, and vice versa. Whether, in the present case, JR’s fall was due to such an ‘object’ is therefore not the issue. (33)
40. Thirdly, contrary to what Austrian Airlines seems to suggest, the carrier’s liability pursuant to Article 17(1) of the Montreal Convention cannot depend on fault/negligence on its part. Whereas that may be a condition of liability in domestic tort/contract law, the wording of that provision does not refer to any element of the sort. Again, what matters is whether an ‘accident’ took place in certain situations, and that concept is an objective one. The fact that, in the present case, Austrian Airlines has taken reasonable care to prevent JR’s injury (34) is therefore irrelevant when it comes to deciding whether that injury was caused by such an event. (35)
41. An appreciation of the whole liability regime set out in the Montreal Convention in case of ‘bodily injury’ sustained by a passenger confirms that interpretation. I recall that fault/negligence on the part of the carrier, or rather the absence of it, can play a part at the defence stage, pursuant to Article 21(2) of that convention. The carrier may sometimes limit its liability by proving that, although an ‘accident’ did happen, it is not to blame for the injury. (36) Thus, fault/negligence cannot possibly be a component of that concept.
42. In short, the ‘real question’ to be answered is a narrow one. It boils down to the following: was the passenger’s injury caused by an event meeting the objective definition of an ‘accident’, as set out in point 35 above?
43. For JR, the German Government, as well as the Commission, that question should be answered affirmatively in the present case. Following the definition of the Court, they submit that a fall such as the one that JR experienced is evidently a ‘harmful’ and ‘involuntary’ event. Furthermore, while there is always a risk of falling on boarding stairs, and people do indeed fall occasionally, it is nonetheless considered to be ‘unforeseen’ when it happens. (37)
44. On the other hand, for Austrian Airlines, the question should be answered in the negative. It submits, in essence, that there was no ‘accident’ in the present case since nothing ‘unexpected’, ‘unusual’ or ‘unforeseen’ caused the fall of the plaintiff. Passengers routinely descend boarding stairs after their flight. Moreover, with the facts of the main proceedings in mind, there was nothing out of the ordinary, such as an unexpected difference of level between the floor of the aircraft and the stairs, nor a defect or substance that would have made them slippery. In that regard, the referring court seems to agree.
45. These opposing views reflect the different approaches taken by national courts in similar circumstances.
46. Indeed, some national decisions follow the logic put forward by JR, the German Government and the Commission. Pursuant to these decisions, a passenger’s fall generally qualifies as an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention. (38)
47. Other national decisions – which, to my knowledge, represent an overwhelming majority – follow the logic suggested by Austrian Airlines. Pursuant to those decisions, an ‘accident’ is not recognised every time a passenger falls and injures himself or herself. The crucial question is why he or she fell. An ‘accident’ appears to happen where the fall was triggered by some unexpected or unusual factor, external to the passenger. For instance, ‘accidents’ were recognised to have occurred where passengers slipped and fell on boarding stairs due to the presence of snow/ice or water on the steps, (39) their sudden movement (40) or an unexpected drop between the floor of the aircraft and the jetway. (41) Passengers falling on board an aircraft because they slipped on a soap stain on the toilet floor (42) or because a fellow passenger suddenly stepped on their foot (43) were also considered victims of ‘accidents’. On the other hand, where a passenger fell for no ascertainable reason, (44) or where the fall was due solely to his or her own prior state of health, (45) the claim was dismissed.
48. In my view, the logic underpinning that second approach is the correct one, for a number of reasons.
49. First, although, in everyday language, the term ‘accident’ is often conflated with that of ‘injury’, that is not the same in the Montreal Convention. Article 17(1) distinguishes between the ‘bodily injury’ suffered by the passenger and the ‘accident’ that caused it. Hence, one must separate cause and effect. I tend to consider that the act of falling is not a cause, but the effect of something else: it is a person’s reaction to a trigger.
50. Therefore, when one wonders whether an ‘accident’ has happened, one cannot look at the fall in isolation without considering what triggered it. I recall that, pursuant to Article 17(1), the plaintiff does need to establish that an ‘accident’ caused his or her injury. ‘I fell’ is too weak an explanation in that respect.
51. Secondly, on that last point, many reasons can lead a person to fall involuntarily and injure himself or herself. They can be ‘internal’ to that person – such as fainting because of his or her state of health – or ‘external’ to him or her – such as an unexpected encounter with a slippery surface.
52. In that respect, it seems quite obvious to me that when a passenger falls on board the aircraft, or during the process of embarking or disembarking, for reasons which are purely ‘internal’ to him or her, that passenger cannot have a claim against the air carrier under Article 17(1) of the Montreal Convention. (46) For example, although a stroke is certainly – to use the wording of the Court – an ‘unforeseen, harmful and involuntary event’, it cannot reasonably qualify as an ‘accident’ within the meaning of that provision. The same reasoning applies to a passenger fainting because of his or her prior state of health, falling on the floor and injuring himself or herself as a result.
53. Indeed, there is a reason why, as I recalled in point 35 above, national courts have consistently read an ‘externality’ criterion in the concept of ‘accident’. Although resting on the ordinary meaning of the term, that concept remains an autonomous one, used in a treaty to achieve a particular purpose – including, I recall, ‘ensuring protection of the interests of consumers in international carriage by air’ while maintaining an ‘equitable balance of interests’ (47). It should accordingly be interpreted in the light of that purpose. In that respect, national courts have rightly considered that the drafters of the Montreal Convention did not intend to make air carriers liable for the prior health issues of their passengers that happen to manifest themselves on board the aircraft or during the process of embarking or disembarking. (48) Given this, while the ‘externality’ criterion is seemingly absent from the definition provided by the Court in the judgment in Niki Luftfahrt, I seriously doubt that it intended to dismiss it. (49)
54. Therefore, only if a passenger’s fall is triggered by some ‘external’ factor should he or she be considered to have been a victim of an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention. However, since any injury is the product of a chain of causes, it suffices that some link in the chain constitutes such a factor. (50)
55. Thirdly, I recall that, to qualify as an ‘accident’, an event has to be ‘unexpected’ or ‘unusual’ (or, to use the synonym employed by the Court, ‘unforeseen’). In that respect, it is well established in national case-law that there is no ‘accident’ in cases where an injury results from the passenger’s own particular, personal or peculiar reaction to the usual, normal and expected operation of the aircraft or the facilities provided for embarking and disembarking. (51) In the judgment in Altenrhein Luftfahrt, (52) it seems to me that the Court endorsed that approach. It ruled that a passenger that suffered a serious back injury, as a result of a so-called ‘hard landing’, was not the victim of an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, since that landing was within the normal operating range of the aircraft and thus could not be considered as ‘unforeseeable’. (53)
56. Accordingly, for the carrier’s liability to arise, a passenger’s fall must result from something other than his or her own reaction to the normal operation of the aircraft or the abovementioned facilities. Indeed, if a passenger falls because the normal pressure inside the aircraft’s cabin makes him or her dizzy, I do not see why this should be treated differently than the back injury in the judgment in Altenrhein Luftfahrt. The fact that the passenger in the first scenario collapsed on the floor, whereas the passenger in the other scenario remained seated, should be irrelevant in my view.
57. Of course, whether something is ‘unforeseen’ or, on the contrary, usual, normal and expected depends upon whose or which perspective one adopts. In that respect, national courts tend to adopt the victim’s perspective. (54) However, in the judgment in Altenrhein Luftfahrt, the Court refused to do so, as it could lead to the ‘paradoxical result’ of the same event being classified as ‘unforeseen’ and, therefore, as an ‘accident’ for certain passengers, but not for others. The Court did not adopt the carrier’s perspective either. Instead, it opted for a more objective perspective and ruled that the ‘hard landing’ at stake in that case was usual, normal and expected as it did not exceed the limits laid down by the essential requirements concerning the operation of the aircraft in question. (55)
58. I agree that a degree of objectivity is required. Adopting the subjective perspective of one or the other interested party does not always lead to a balanced outcome. (56) However, industry standards, including the essential requirements concerning the operation of the aircraft or the facilities used for embarking or disembarking, while sometimes relevant, should not be a decisive factor. For instance, if a passenger falls and injures himself or herself on board the aircraft because of sudden air turbulence, one should, in my view, conclude that the injury was caused by an ‘unforeseen’ event and thus by an ‘accident’ irrespective of whether such turbulence exceeded the limits laid down in these essential requirements.
59. In my view, the ‘unexpected’, ‘unusual’ or ‘unforeseen’ character of the event causing the injury should rather be assessed from the perspective of a disinterested bystander, namely an hypothetical passenger, with some prior – and good/positive – experience of air travel. (57) Such a bystander would, for instance, certainly not expect to find some foreign substance or item – water, snow, oil, a banana skin, and so on – on a cabin floor or on boarding stairs.
60. In short, an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention takes place where a passenger’s fall is triggered – at least in part – by some factor ‘external’ to that person. Furthermore, that factor must be ‘unexpected’ or ‘unusual’ (or, put another way, ‘unforeseen’), from the perspective of a disinterested bystander. That is the case particularly when the fall involves the presence of some substance or item that does not form part of the normal operation of the aircraft or the facilities provided for embarking and disembarking.
61. Therefore, in my view, when a passenger slips and falls on a greasy stain on the cabin floor, on boarding stairs treacherously covered in snow, or as a result of other similar circumstances, the resulting injury is caused by an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention. On the other hand, when a passenger falls, as JR did in the circumstances of the main proceedings, on boarding stairs which are not slippery, defective or in any other way unusually hazardous, and where it is also not established that the fall was triggered by another ‘unexpected’ or ‘unusual’ (or ‘unforeseen’) factor – a sudden gap between the aircraft and the stairs, and so on – then there is no such ‘accident’. That fall constitutes no more than the passenger’s particular, personal or peculiar – and inexplicable – reaction to the usual, normal and expected function of those stairs. (58)
62. In my view, any other interpretation would run counter to the purpose of the Montreal Convention. (59) In particular, if the concept of ‘accident’ within the meaning of Article 17(1) were to be understood, as suggested by JR, the German Government, as well as the Commission, as covering any harmful and involuntary passenger’s fall, irrespective of the triggering factor, then the scope of that provision would be extended unreasonably to the detriment of air carriers. (60)
63. Indeed, it would make air carriers accountable for incidents that result from reasons ranging from prior health issues to pure clumsiness of the passengers concerned. In that regard, it would be very close to making them liable for every harm that happens on board their aircrafts or during the process of embarking or disembarking, even though the drafters of the Montreal Convention precisely used the term ‘accident’ in Article 17(1) rather than ‘event’ in order to narrow the category of claims that could be brought by passengers for ‘bodily injury’. (61) Such incidences would be hard to predict and impossible to prevent. It could therefore place a very heavy compensation burden on air carriers, which would be difficult to determine and would clearly be incompatible with the careful balance of interests struck by that convention. (62)
64. It is true that, as JR and the Commission recall, Article 20 of the Montreal Convention grants air carriers a defence in the case of contributory negligence. That provision could indeed exonerate them in certain circumstances, where a fall involves the negligence of the plaintiff. That said, it would be of little help in the many instances where such negligence could not be established – for example, where a passenger falls in the middle of the tarmac for no ascertainable reason, or where the fall is due solely to his or her prior state of health. (63)
65. On the contrary, the interpretation provided in this Opinion, in my view, does not impose such a burden on air carriers, (64) while it enables passengers to be compensated ‘easily and swiftly’, as required by the Court in the judgment in Niki Luftfahrt. (65) The concept of ‘accident’ remains a broad one, and the burden resting on the plaintiff under Article 17(1) is low. He or she merely needs to establish – successfully – that there was some sort of ‘unexpected’ or ‘unusual’ factor, external to him or her, that caused or contributed to his or her fall – such as the presence of snow on the steps on the boarding stairs – nothing less, but also nothing more. The plaintiff does not need to establish why something unexpected or unusual happened – why there was snow on the steps, or anything else. (66) In particular, he or she does not need to prove, as it stems from point 40 above, that it is attributable to fault/negligence on the part of the carrier – it may as well result from the conduct of a third party or from an act of God.
66. Having regard to the foregoing, the answer to the first question should, in my view, be that the concept of ‘accident’ within the meaning of Article 17(1) of the Montreal Convention covers a situation in which a passenger falls on the boarding stairs whilst disembarking, provided that the fall was triggered by some unexpected or unusual factor that is external to the passenger.
B. On the contributory negligence defence envisaged in Article 20 of the Montreal Convention (second question)
67. Whether an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention took place is one thing. Whether that ‘accident’ is compensable is another. Although it is in principle the case, I recall that Article 20 of that convention grants a defence to the carrier, in the form of a plea of contributory negligence.
68. In that context, by its second question, the referring court asks, in essence, whether, pursuant to that provision, the fact that a passenger, who fell on the boarding stairs whilst disembarking, did not hold on to the handrails should, in circumstances such as those in the main proceedings, exonerate the air carrier from its liability and, if so, to what extent.
69. Of course, the Court will not have to answer the second question if it replies to the first one as suggested in this Opinion. Indeed, the referring court would have to reject JR’s claim – since it would not be established that her injury was caused by an ‘accident’ – without having to address the issue of contributory negligence. I shall therefore discuss it only in the alternative.
70. Broadly speaking, Article 20 of the Montreal Convention functions, depending on the circumstances, as a partial or full defence against, notably, a claim for ‘bodily injury’ under Article 17(1). Indeed, it allows the carrier to exonerate itself partially or even totally from the liability stemming from the latter provision. That is, the court will apply a partial or total deduction to the sum of damages that would otherwise be granted to the claimant.
71. When it comes, more specifically, to the conditions of exoneration, Article 20 centres on the situation where ‘the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation’. (67) Thus the conduct of the passenger, be it an ‘act’ or an ‘omission’, must not only be part of the chain of causes that led to his or her injury but must also involve some element of ‘negligence’ or another kind of ‘wrongful’ behaviour. The carrier has the burden of proof in that regard. (68)
72. These concepts of ‘wrongful act or omission’ and ‘negligence’ are not defined in the Montreal Convention. I recall that they must nonetheless receive a uniform and autonomous meaning, in accordance with the rules of interpretation set out in point 28 above. The general principles stemming from the laws of the States Parties and EU law (69) also provide relevant indications.
73. In the ordinary meaning of those terms, ‘wrongful’ is usually a broad synonym of unfair, illegal, harmful or blameworthy, (70) while ‘negligence’ means more precisely the failure to give the required care and attention to someone or something for whom or which you are responsible. I will concentrate on that second concept in the rest of this Opinion, as the ‘other wrongful act or omission’ envisaged in Article 20 of the Montreal Convention most likely relates to some intentional conduct of the claimant, in other words, a scenario not at stake in the present case.
74. In the context of Article 20, as the German Government and the Commission rightly observe, the point is not whether the claimant failed to give the required care and attention to the air carrier, but if he or she failed to do so in respect of his or her own safety. (71) Generally speaking, a person acts negligently if he or she fails to exercise ‘reasonable care’ in a given situation. In short, the carrier must show that the claimant did not exercise ‘reasonable care’ for his or her safety under the circumstances and, for that reason, caused or contributed to his or her injury. What is ‘reasonable’ is assessed objectively, by comparing the actual conduct of the person concerned with the one that a – hypothetical – reasonably diligent person would have had in the same situation. (72)
75. Two grounds of potential contributory negligence have been raised by Austrian Airlines in the main proceedings: first, the fact that JR failed to hold on to the handrails of the boarding stairs in order to minimise the risk of falling, although she had just witnessed her husband’s near fall; secondly, the fact that she chose not to be treated in a nearby hospital immediately after the incident but instead travelled home before doing so, which may have aggravated her injuries – in other words, she failed to ‘mitigate her loss’. (73) Both are, in my view, relevant under Article 20 of the Montreal Convention. That said, the referring court does not ask whether such circumstances indeed amount to negligence on the part of the passenger. In fact, it is convinced that it does, at least with respect to the failure to hold onto the handrails. As I explained in point 30 above, it is not my role to call that finding into question. I shall nonetheless make two related remarks.
76. First, as is already apparent from point 74 above, whether a passenger acted negligently in a given situation is a highly factual issue. For instance, the fact that a passenger, who fell on boarding stairs whilst disembarking, did not hold on to the handrails can sometimes, but not always, qualify as contributory negligence on his or her part. (74) Whether a reasonably diligent person would have done so in the same situation depends on all the surrounding circumstances, such as the number of passengers on the stairs, whether or not it was raining, whether the person presented an increased risk of falling because he or she was tired after a long flight, carrying a heavy suitcase or a fussy child in his or her arm, and so on. Equally, the fact that a passenger chose not to receive medical treatment immediately after falling can sometime constitute a failure on his or her part to mitigate his or her loss. However, that depends on various circumstances such as the extent to which the injury seemed to be serious in that given moment, whether the carrier’s personnel informed or directed the injured person to the available medical services, or even whether the passenger’s doctor of choice is far away.
77. This leads me to my second point. The Court sometimes takes it upon itself to answer questions tailored to very detailed and specific set of facts. The case-law related to the concept of ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation (EC) No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, (75) is a prime example of that tendency. There, the Court often rules, in effect, on whether those sets of facts qualify as ‘extraordinary circumstances’. (76) I respectfully urge the Court to refrain from doing so when it comes to Article 20 of the Montreal Convention. Otherwise, it may end up with a flow of requests for preliminary rulings asking it to assess a multitude of fact-specific scenarios. It should rather limit itself to setting abstract and general assessment criteria for the application of that provision, and let the national courts decide.
78. When it comes, now, to the legal consequences that should flow from a finding of contributory negligence, Article 20 of the Montreal Convention states that the carrier shall (77) be ‘wholly or partly exonerated from its liability … to the extent that [the claimant’s] negligence or wrongful act or omission caused or contributed to the damage’.
79. The referring court wonders how that logic should be applied in the main proceedings. Given that, on the one hand, in its view, JR had been negligent for not holding on to the handrails and that, on the other hand, Austrian Airlines had not, (78) why should the carrier not be wholly exonerated from its liability for the ‘accident’ that befell the claimant? (79) It comes down to asking how one should decide on the degree of exoneration – full or partial and, if so, how much – the carrier must benefit from in a given case where contributory negligence has been established.
80. This is a tricky issue. Indeed, the defence of contributory negligence is usually found in traditional liability regimes, which are fault-based. Where the tortfeasor and the victim each committed a fault that contributed to the harm of the latter, liability is apportioned between the two, based on their respective share of responsibility, and the damages are calculated accordingly. (80) However, in the context of a ‘bodily injury’ claim under Article 17(1) of the Montreal Convention, since, as opposed to the negligence of the claimant, fault/negligence on the part of the carrier is irrelevant, (81) how, then, can such an apportionment of liability be done?
81. No genuinely satisfying answer to this conundrum is likely to be found in legal theory. On a practical level, however, a solution consists, in my view, in assessing the extent to which the passenger’s injury was caused (i) by the relevant ‘accident’ and (ii) by his or her own negligence. It amounts to an exercise of comparative causality, to be done also by national courts. (82) In the end, the contributory negligence defence is a matter of fairness. It would not be fair for a carrier to be entirely liable for a passenger’s injury simply because an ‘accident’ is part of the chain of causes that led to it, while the latter also contributed to his or her injury. That defence contributes, as such, in ensuring the ‘balance of interests’ aimed at by the drafters of the Montreal Convention.
82. For instance, when a passenger falls on boarding stairs while disembarking due to (i) the fact that he or she slipped on an unexpected patch of snow on the steps and (ii) the fact that he or she did not hold on to the handrails – if it is considered negligent in the circumstances – then the claimant’s share of responsibility should, in fairness, absolve the carrier of a part of the liability that Article 17(1) of the Montreal Convention otherwise imposes on it for the ‘accident’. In that context, the failure of the passenger to reach for the handrails should probably be treated like the failure of a person involved in a car crash caused by a third party to buckle his or her seatbelt: it is a contribution to the harm that justifies a partial reduction of the damages awarded. Total exoneration of the carrier should, on the other hand, be limited to cases of gross negligence on the part of the claimant. (83)
83. Having regard to the foregoing, the answer to the second question should in my view be that Article 20 of the Montreal Convention applies, in the context of a claim under Article 17 of that convention, where the claimant did not exercise reasonable care for his or her safety and, for that reason, caused or contributed to his or her injury. This is to be assessed by national courts in light of all the circumstances. The degree of exoneration of the carrier depends on the extent to which the injury was caused (i) by the relevant ‘accident’ and (ii) by the negligence of the claimant. Total exoneration is limited to cases of gross negligence on the part of the claimant.
V. Conclusion
84. In the light of all the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows:
(1) Article 17(1) 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 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that the concept of ‘accident’ within the meaning of that provision covers a situation in which a passenger falls on the boarding stairs whilst disembarking, provided that the fall was triggered by some unexpected or unusual factor that is external to the passenger.
(2) Article 20 of that convention must be interpreted as meaning that it applies, in the context of a claim under Article 17 of that convention, where the claimant did not exercise reasonable care for his or her safety and, for that reason, caused or contributed to his or her injury. This is to be assessed by national courts in light of all the circumstances. The degree of exoneration of the carrier depends on the extent to which the injury was caused (i) by the relevant ‘accident’ and (ii) by the negligence of the claimant. Total exoneration is limited to cases of gross negligence on the part of the claimant.