DB v Austrian Airlines AG (C-510/21)

Contents

Judgment of the Court (Third Chamber)6 July 2023^note(Reference for a preliminary ruling — Air transport — Montreal Convention — Article 17(1) — Liability of air carriers for death or injury sustained by passengers — Concept of accident — Bodily injuries aggravated by first aid administered following an accident that took place on board an aircraft)In Case C‑510/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 5 August 2021, received at the Court on 19 August 2021, in the proceedingsDBvAustrian Airlines AG,THE COURT (Third Chamber),composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra (Rapporteur), N. Jääskinen and M. Gavalec, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– DB, by L. Specht, Rechtsanwalt,– Austrian Airlines AG, by A. Danner, Rechtsanwalt,– the German Government, by J. Möller, J. Heitz and M. Hellmann, acting as Agents,– the European Commission, by G. Braun, K. Simonsson, G. Wilms and N. Yerrell, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 12 January 2023,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 17(1) and Articles 29 and 35 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 (OJ 2001 L 194, p. 38, ‘the Montreal Convention’), which entered into force, so far as the European Union is concerned, on 28 June 2004.

2The request has been made in proceedings between DB and Austrian Airlines AG, an air carrier, concerning a claim brought by DB for compensation for damage caused by the first aid administered to him on board an aircraft during a flight operated by that carrier.

Legal context

International law

3The third and fifth recitals of the Montreal Convention state:‘[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,…… collective State action for further harmonisation and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.

4Article 17 of the Montreal Convention, entitled ‘Death and Injury of Passengers – Damage to Baggage’, provides, in paragraph 1 thereof:‘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.’

5Under the first sentence of Article 29 of that convention, entitled ‘Basis of Claims’:‘In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention …’

6Article 35 of that convention, entitled ‘Limitation of Actions’, provides, in paragraph 1 thereof:‘The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.’

European Union law

7According to Article 3(1) of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ 1997 L 285, p. 1), as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ 2002 L 140, p. 2), ‘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’.

Austrian law

8Under Paragraph 1489 of the Allgemeines bürgerliches Gesetzbuch (General Civil Code), in the version applicable to the dispute in the main proceedings (‘the ABGB’), the injured party can assert his or her claims for compensation against the injuring party within three years.

The dispute in the main proceedings and the questions referred for a preliminary ruling

9On 18 December 2016, DB travelled from Tel-Aviv (Israel) to Vienna (Austria) on a flight operated by Austrian Airlines. During that flight, a jug containing hot coffee fell from the catering trolley used for serving passengers and scalded DB. First aid was administered to him on board the aircraft.

10On 31 May 2019, DB brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) against Austrian Airlines seeking, first, payment of the sum of EUR 10196 by way of damages and, secondly, a declaration establishing that air carrier’s liability for all future damage resulting from the aggravation of his burns on account of the inadequate first aid administered on board the aircraft. DB claimed that Austrian Airlines was liable not only for the carelessness of its employees which led to the jug of coffee falling, but also for the inadequate first aid administered on board the aircraft to treat the burns suffered. Since, according to DB, that first aid cannot be classified as an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, it is governed by national law. Therefore, the three-year time limit for bringing an action for damages to compensate for the injury caused by that first aid, provided for in Paragraph 1489 of the ABGB, had not expired.

11In its defence, Austrian Airlines contended that the injuries sustained by DB were properly treated and that, since the Montreal Convention is applicable in the present case, the two-year time limit for bringing an action for damages, provided for in Article 35(1) thereof, had expired.

12The Handelsgericht Wien (Commercial Court, Vienna) dismissed that action by judgment of 17 June 2020. That judgment was confirmed on appeal by a judgment of the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) of 28 October 2020, which held that the injuries sustained by DB were the result of an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, even though those injuries might have been mitigated, or even avoided, if DB had received proper first aid. That court thus held that the action for damages brought by DB fell within the scope of that convention and that, under Article 35(1) thereof, the time limit of two years for bringing such an action had expired.

13DB brought an appeal on a point of law (Revision) against that judgment before the Oberster Gerichtshof (Supreme Court, Austria), the referring court, claiming that first aid administered on board an aircraft is not covered by the concept of ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, so that that convention is not applicable in the present case. Accordingly, the limitation period of three years provided for in Paragraph 1489 of the ABGB is applicable to the action for damages which he had brought.

14That court considers that a jug of coffee falling from the catering trolley used for serving passengers, which took place on board an aircraft and caused scalding to a passenger, constitutes an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, as interpreted by the judgment of 19 December 2019, Niki Luftfahrt (C‑532/18, EU:C:2019:1127). By contrast, it is uncertain whether the first aid administered on board the aircraft, on account of such an accident, constitutes a harmful event distinct from that accident, or whether those two events constitute a single ‘accident’ within the meaning of that provision.

15According to the referring court, the concept of ‘causation’ in Article 17(1) of the Montreal Convention, together with its scheme and objective of unification, support an interpretation according to which, in the present case, the jug of coffee falling, on the one hand, and the first aid administered on board the aircraft, on the other, must be regarded as forming part of the same ‘accident’, within the meaning of that provision. But for the jug of coffee falling, the first aid would not have been administered and, consequently, there would have been no separate bodily injuries or aggravation of the bodily injuries sustained. That court states that, should the ‘single accident’ approach be accepted, the action for damages brought by DB would be time-barred under Article 35(1) of that convention.

16However, that court does not rule out the possibility of regarding the jug of coffee falling and the first aid administered on board the aircraft on account of the bodily injury caused by it as independent harmful events and asks the Court to give a ruling in that regard.

17In that situation, the referring court is uncertain whether, in the light of Article 29 of the Montreal Convention, an action for damages may be brought, on the basis of national law, for compensation for damage caused to a passenger by that first aid. According to that court, such an action could be brought on the basis of national law only if the Montreal Convention were to be interpreted as not covering, as an independent harmful event, bodily injuries sustained by a passenger on board an aircraft where no accident took place or irrespective of whether any accident took place.

18In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is first aid which is administered on board an aircraft following an accident within the meaning of Article 17(1) of the [Montreal Convention] and which leads to further bodily injury to the passenger which can be distinguished from the actual consequences of the accident to be regarded, together with the triggering event, as a single accident?(2) If Question 1 is answered in the negative:Does Article 29 of [the Montreal Convention] preclude a claim for compensation for damage caused by the administration of first aid where that claim is brought within the limitation period under national law but outside the period for bringing actions which is laid down in Article 35 of [that] convention?’

Consideration of the questions referred

The first question

19By that question, the referring court asks, in essence, whether Article 17(1) of the Montreal Convention must be interpreted as meaning that the inadequate first aid administered on board an aircraft to a passenger, which aggravated the bodily injuries caused by an ‘accident’, within the meaning of that provision, must be regarded as forming part of that accident.

20It should be borne in mind at the outset that, under Article 3(1) of Regulation No 2027/97, as amended by Regulation No 889/2002, the liability of an EU air carrier in respect of passengers is to be governed by all provisions of the Montreal Convention relevant to such liability.

21Pursuant to Article 17(1) of that convention, the air 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.

22The concept of ‘accident’ must be understood as an unforeseen, harmful and involuntary event which does not require that the damage be due to the materialisation of a hazard typically associated with aviation or that there be a connection between the accident and the operation or movement of the aircraft (see, to that effect, judgments of 19 December 2019, Niki Luftfahrt, C‑532/18, EU:C:2019:1127, paragraphs 35 and 41, and of 2 June 2022, Austrian Airlines (Exoneration of air carrier from liability), C‑589/20, EU:C:2022:424, paragraph 20).

23In that regard, it is important to note that it is not always possible to attribute the occurrence of damage to an isolated event where that damage is the result of a series of interdependent events. Thus, where there is a series of intrinsically linked events that take place successively, without interruption, in space and time, that series of events must be regarded as constituting a single ‘accident’ within the meaning of Article 17(1) of the Montreal Convention.

24That is the case where, as in the present case, a jug containing hot coffee fell and caused scalding to a passenger, requiring members of the flight crew immediately to administer first aid. In view of the continuity in space and time between the jug of coffee falling and the first aid administered to the passenger injured by it, it cannot be disputed that there is a causal link between the jug of coffee falling and the aggravation of the bodily injuries caused by it on account of inadequate first aid being administered.

25That interpretation is consistent with the objectives pursued by the Montreal Convention. According to the third recital of that convention, the States Parties thereto, recognising ‘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’, decided to lay down a system of strict liability for air carriers. A system of that kind implies, however, as is apparent from the fifth recital of that convention, that an ‘equitable balance of interests’ be maintained, in particular the interests of air carriers and of passengers (judgment of 12 May 2021, Altenrhein Luftfahrt, C‑70/20, EU:C:2021:379, paragraph 36).

26By restricting the concept of ‘accident’, within the meaning of Article 17(1) of the Montreal Convention, to a series of intrinsically linked events that take place successively, without interruption, in space and time, that provision enables passengers to be compensated easily and swiftly, yet without imposing a very heavy compensation burden on air carriers, which would be difficult to determine and to calculate, and would be liable to undermine, and even paralyse, the economic activity of those carriers (see, to that effect, judgment of 19 December 2019, Niki Luftfahrt, C‑532/18, EU:C:2019:1127, paragraph 40).

27The fact that the air carrier concerned has failed to fulfil its diligence and care obligations, even if established, is not capable of calling those findings into question (see, to that effect, judgment of 2 June 2022, Austrian Airlines (Exoneration of air carrier from liability), C‑589/20, EU:C:2022:424, paragraph 22). For the purposes of classification as an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, it is sufficient that the event which caused the death or bodily injury of a passenger took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

28In the light of the foregoing, the answer to the first question is that Article 17(1) of the Montreal Convention must be interpreted as meaning that the inadequate first aid administered on board an aircraft to a passenger, which aggravated the bodily injuries caused by an ‘accident’, within the meaning of that provision, must be regarded as forming part of that accident.

The second question

29Since the second question was referred only in the event that the first question is answered in the negative, there is no need to examine it.

Costs

30Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: 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 inadequate first aid administered on board an aircraft to a passenger, which aggravated the bodily injuries caused by an ‘accident’, within the meaning of that provision, must be regarded as forming part of that accident.