A few spikes from the EU Court
decision on the case C-510/21:
The Concept of
Accident under the Article 17 1) of the Montreal
Convention 1999
Università di Sassari
SUMMARY: 1. The fact and the proceeding in front of
the Austrian Court. – 2. The
meaning of the term accident in the context of Article 17 of the Montreal
Convention.
– 3. The
Montreal Convention and the Court of Justice of the European Union. – 4. The interpretation of the Convention and
the reference to the national translation of the Convention. – 5. The concept of an accident as defined by
the European Court of Justice. – Abstract.
1. – The fact and the
proceeding in front of the Austrian Court
On December 18, 2016, DB traveled from Tel-Aviv, Israel,
to Vienna, Austria, on a flight operated by Austrian Airlines. During the
flight, a jug of hot coffee fell from the catering trolley used to serve
passengers and scalded DB. First aid was administered to DB on board.
Two years later, on May 31, 2019, DB filed a claim
against Austrian Airlines in Vienna’s Commercial Court, seeking compensation of
10,196 EUR for the damages suffered and a court declaration that Austrian
Airlines should be declared liable for any future damage caused by the
aggravation of his burns as a result of the inadequate first aid provided to
him on the plane.
DB argued that first aid cannot be qualified as an
«accident» according to the definition in Article 17(1)[1]
of the Montreal Convention. For this reason, according to him, the air carrier
could not be intitled to oppose time limit under article 35(1)[2]
for damages resulting from injuries caused by the inadequate medical aid given
onboard. That damage should be considered under the Section 1498 of the
Austrian General Civil Law Code (ABGB), which imposes a limitation period of
three years from the date on which the injured party became aware of the damage
in order to claim for compensation.
The defendant carrier argued that DB’s injuries were
appropriately treated and that the Montreal Convention applied in that case, so
that the two-year period for bringing an action for damages under Article 35 [3]
should be considered expired.
The Vienna Commercial Court dismissed DB’s action in a
judgment of June 17, 2020. This decision was sustained on appeal by Vienna’s
Higher Regional Court on October 28, 2020.
The Higher Regional Court held that DB’s injuries were
a result of an «accident» as defined in Article 17(1) of the Montreal
Convention, even if appropriate first aid could have mitigated or prevented
such injuries. Consequently, the Court determined that DB’s claim for damages
fell under the ambit of the Montreal Convention, and since Article 35(1) of the
Convention provides a two-year limitation period for such claims, DB’s action
was time-barred.
DB appealed the judgment to the Supreme Court of
Austria, arguing that the first aid provided on an aircraft should not be
considered an «accident» within the meaning of Article 17(1) of the Montreal
Convention. Accordingly, DB argued that the Convention would not be applicable
to this scenario, and that the claim for damages should instead be subject to
the three-year period of limitation set out in Section 1489 of the Austrian
Civil Code (ABGB).
The Austrian Supreme Court considered that the fall of
a coffee jug from the catering trolley used to serve passengers on board an
aircraft, which caused burns to a passenger, constituted an «accident» within
the meaning of Article 17 of the Montreal Convention, as interpreted by the
judgment of the European Court of Justice of December 19, 2019, Niki Luftfahrt
C-532/18 [4].
According to the Austrian Supreme Court, there was
still a controversial point on the interpretation of the article 17 (1) of M.C.
if the first aid administered on board could be considered as a separate
harmful event beyond the original «accident», or if the two events should be
considered just as one «accident».
According to Austrian Supreme Court, the fall of the
coffee jug and the administration of first aid on the plane could be considered
as steps of the same «accident». The Court argued that if the coffee jug
accident would not occur, the first aid wouldn’t have
been given, and consequently, there wouldn’t have been separate injuries or
exacerbation of the injuries sustained.
The court stated that if the «single accident»
approach was accepted, DB’s claim for damages would have been time-barred under
Article 35 of the Montreal convention. The Court wondered if the passenger
could be entitled to a claim under domestic law and if such a claim could be
allowed under Article 29 [5] of the Montreal Convention. According to
Austrian Supreme Court, such a claim could be allowed only if injuries by first
medical aid could be considered as the consequence of an «accident» other than
the «accident» covered by article 17 of Montreal Convention. So, there was a
question of interpretation of Article 17 of Montreal Convention. As Montreal
Convention is a part of the laws of European Union Law, and as Austrian Supreme
Court was a judge of last instance, it was compulsory to refer the matter of interpretation
of article 17 of Montreal Convention to the European Court of justice (under
article 267 of TFEU[6]).
For these reasons the Supreme Court decided to stay
the proceeding 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?».
2. – The meaning of
the term accident in the context of Article 17 of the Montreal Convention
Resuming the first question the European Court of Justice was asked if,
as in the meaning of article 17 of the Montreal Convention
the first aid administered on board that aggravated the bodily injuries should
be considered a part of the accident.
The Court of Justice of the European Union firstly
identified Montreal Convention 1999 as the legal bases
for claim against the air carrier. Article 17 of MC establishes that:
«The air carrier is liable for the damage sustained in
case of death or bodily injury of a passenger upon condition only if that
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».
The «accident» must be considered as an unexpected[7],
harmful and involuntary event necessarily based on a common aviation risk or on
a risk directly related to the flight.
According to the EU Court «[…] it is not always
possible to attribute the occurrence of a damage to an
isolated event when that damage is the result of a series of interdependent
events» (§ 23).
In cases in which 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 a single «accident» in the meaning of Article 17
of the Montreal Convention as in the case examined.
For these reasons, the European Court ruled on the first matter:
«Article 17 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 Court did not rule on the second question, because the examination
was conditional on the decision of the first one.
Analyzing this case, we have two focuses: the Montreal Convention, and
the meaning given to the word «accident» presented in article 17 of the
Convention, which set a base for the Court’s decision[8].
3. – The Montreal
Convention and the Court of Justice of the European Union
The Montreal Convention of May 28, 1999, is an international
treaty entered into force on November 4, 2003, which establish
rules for international air carriage[9]. This Convention has been adopted by a
significant number of states, including those with the largest volume of air
traffic, and is considered the main source of regulation for international air
transport contracts[10].
Both the Montreal Convention and the earlier Warsaw
Convention have gaps and regulate only certain aspects of international air
carriage. Matters not covered by international uniform law falls
under national laws to be selected by applicable principles on choice of laws.
European Union law has tried to neutralize the risk of
fragmentation and dis-homogeneity by directly subscribing to it[11].
Besides, the European Union has enforced a regulation on passenger air carrier
liability that applies the rules of the Montreal Convention to all flights,
whether domestic or international, operated by EU air carriers (EC Regulations
No. 2027/1997 as amended by Regulation No. 889/2002. It also adopted
regulations on air passengers right establishing
common rules on air passengers rights in case of
common rules on compensation and assistance to passengers in events of denied
boarding and of cancellation or long delay of flights 261/2004)[12].
The Court of Justice of the European Union has played
a key role in interpreting and applying these rules, to ensure in the European
Union a high level of uniformity in the field of the rights of air passengers
and liabilities of air carriers of passengers[13].
In Montreal Convention’s system, the liability claim
against the carrier in case of bodily injury requires the claimant to comply
with the burden of proof that the injury was the consequence of an accident
occurred on board the aircraft or during the operations of embarking and
disembarking (i.e.: carrier is responsible for passengers between the beginning
of embark operations to the end of disembarking operations). Once there was no
doubt that the very beginning of embarking operations should be identified with
the check-in. Today, the solution can’t be generalized because there is a large
variety of situations, such as trans-shipment in hub and spoke and multiple
stops trips, online check-in, etc… Carrier is liable both for safety and
security towards passengers all around his period of responsibility.
Air carrier liability for passengers’ injuries and
death is based on a two-tyers system. There is a first level of strict
liability (till 113,100 SDRs). For damages exceeding the limit of 113,100 SDRs,
carrier is entitled to exonerate himself to pay further compensation if he
proves «(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».
4. – The interpretation
of the Convention and the reference to the national translation of the
Convention
The Montreal Convention is an international treaty
with six official texts in official languages of United Nations. It has been
translated into several languages. There are also many translations, among them
there are Italian translations, included one «Unofficial Translation» annexed
to Italian Law No. 12 of January 10, 2004, which incorporates the Montreal
Convention in Italy, published in Italian Official Journal. There is also an
Italian text annexed to the European Commission decision of 2001/539/CE on the
conclusion by the European community of the Montreal Convention, published in
the Official Journal of European Communities. Finally, there is an Italian
translation of the Montreal Convention published in the Official web portal of
Swiss Confederation.
Even if the Italian translations of the Convention
have no international legal value, they have given rise to some interpretative
debates. In particular, there have been doubts about the correct meaning of the
term «evento» used in the three mentioned Italian texts to translate the term
«accident» in the Article 17(1) of the Montreal Convention (it is worth noting
that the French and Spanish official texts of the Montreal Convention express
the same concept using the terms «accident» and «acidente», respectively). It
appears that the Italian unofficial translation may not be entirely accurate,
which could potentially (and often does) lead to misinterpretations of the
Convention. This is a particularly sensitive matter, as the concept of an
«accident» forms the basis of an air carrier’s liability for passengers’
injuries and fatalities under the Montreal Convention. It is important to
ensure that the translation is as precise as possible in
order to avoid any misunderstandings[14].
Quite often, in the Italian judgments, the term
«accident», is translated as «evento», which would rather be corresponding to
the English «event». The same occurred in the Italian text of the European
Court of Justice case here considered. So, apparently, there is no substantial
coincidence between Italian text of the judgment, and the other linguistic
versions of the same decision (as consequences of the erroneous choice of
terminology in the Italian version of the law which constitutes the legal basis
of the judgment).
This translation choice results in the loss of a
semantic distinction of considerable importance, precluding a complete
understanding of the judgment in its Italian translation, as the terms accident
and event have different meanings and interpretations: not every event is an
accident[15].
The Montreal Convention does not give any definition
of the term «accident». So, it should be interpreted according to the rules of
interpretation of general uniform international law, as often expressed in many
cases by the European Court of Justice.
Even though a broader concept of accident appears to
be emerging, a restrictive interpretation of the term, based on its literal
meaning as it is commonly used in the English language, continues to prevail[16].
In the interpretation of the word «accident» we should
necessarily refer to case-law by courts applying the
Montreal Convention. It is the problem so called of «the uniform interpretation
of the uniform law». The problem is considered by the
Article 2 of the Italian Law reforming the Italian System of International
Private Law (Law No. 218 of 31st May 1995), providing that interpretation of
international conventions should consider their international nature, and the
need to achieve uniformity in their interpretation. To obtain this goal, it is
understood that Italian Court should consider the interpretation and
application of text of uniform law given by foreign Courts (That does not mean
that Italian Courts should comply with foreign interpretation, but that, if
they choose interpretation, they should motive on such a decision).
5. – The concept of an
accident as defined by the European Court of Justice
The European Court of Justice considered the accident
as «an unforeseen, harmful and involuntary event which does not require that
the damage be due to the materialization of a hazard typically associated with
aviation or that there be a connection between the accident and the operation
or movement of the aircraft» and «a series of intrinsically linked events that
take place successively, without interruption, in space and time» making
reference to the judgments of 19 December 2019, Niki Luftfahrt, C-532/18, ECLI
EU:C:2019:1127, paragraphs 35 and 41, and of 2 June 2022, Austrian Airlines
(Exoneration of air carrier from liability), C-589/20, ECLI EU:C:2022:424,
paragraph 20.
For the definition given by the Court based on the
interpretation of Article 17of the Montreal Convention, considering other
pronouncements, the dropping of a coffee jug on a passenger is an accident
because it is a harmful event unintentionally caused by a member of the crew,
and the first aid given on board is a direct result of that event and can be
considered part of the accident.
The Niki Luftfahrt, C-532/18 case cited by the court
looks quite similar to this one, During the flight, a
passenger was served a glass of hot coffee that the flight attendant had placed
on the table corresponding to the seat where the passenger was seated. The
glass spilled onto the right thigh and chest of the passenger’s minor son, who
was seated next to the passenger, causing second-degree burns to the child.
It could not be determined whether the coffee glass spilled
due to a defect in the folding table on which it was placed or due to the
vibrations of the aircraft.
In this case, with regard to the concept of accident,
the Court stated that the ordinary meaning of the term «accident» is that of an
«unforeseen, harmful and involuntary event» and responded to the request for a
preliminary ruling on the interpretation of Article 17 of Montreal Convention
stating that «the answer to the question referred is that Article 17(1) of the
Montreal Convention must be interpreted as meaning that the concept of
«accident» within the meaning of that provision covers all situations occurring
on board an aircraft in which an object used in the service of passengers has
caused personal injury to a passenger, without it being necessary to examine
whether those situations arise from a risk typically associated with air
transport».
The interpretation adopted is sustained also by the pronunciation
of the United States Supreme Court in the Air France v. Saks of 1985 that defined the accident as something cause
by «an unexpected or unusual event or happening that is external to the
passenger» (The case was decided under the corresponding provision of Article
17 of Warsaw Convention of 1929 [17]).This
interpretation goes to exclude other events like barotrauma and Deep Vein
Thrombosis (also known as syndrome of the economic class).
In Air
France v. Saks[18] as
in other judgments having the same subject, the compensability of the damage
suffered by the passenger for the loss of hearing, as a result of the rupture
of the eardrum, due to the depressurization that, normally, occurs during the
descent of the aircraft, and imputable, to a pre-existing pathology of the
auditory system, in consequence, to a personal and internal factor of the
traveler himself, was excluded as Case law has excluded the air carrier’s
liability for damages caused by DVT (Deep Vein Thrombosis), which some
passengers reported in various proceedings, with varying degrees of severity (some
even resulting in fatality), as a consequence of long-distance flights. In
fact, the harmful consequences related to DW, according to the regulations
under consideration, are compensable only in the presence of an accident, that is,
an event external to the passenger[19],
as well as different and additional to the normal course of the flight, which
could be seen, for example, as a consequence of the longer duration of the
flight than planned, or the malfunction of a seat that forces the passenger
into an unusual position.
Even if the harmful event is external to the
passenger, it is not typically classified as an accident if it is neither
uncommon nor unexpected[20].
Just a little final note: there is no doubt that «an
unforeseen, harmful and involuntary event» may integrate
an accident, but the field of «accidents» may be broader (e.g.: consequences of
terrorism). But this is another question …
In
conclusion, considering the predominant interpretation of the term «accident»,
we can say that the decision of the court is the most correct one: the
inadequacy of the first aid provided to the passenger on board an aircraft,
which aggravated the physical injuries caused by an «accident», must be
considered part of that accident.
Abstract
This article examines the interpretation of the term
«accident» under Article 17 of the Montreal Convention, with particular focus on
the case brought in front of the European Court of Justice regarding the
inadequate first aid administered on board an aircraft. The analysis highlights
the implications of translation discrepancies and the evolving case law on air
carrier liability. It argues that the Court’s decision aligns with the
predominant interpretation of the term, reinforcing the view that a series of
intrinsically linked events can constitute a single accident under the Montreal
Convention.
[1] Art. 17 Montreal Convention 1999 «Death and injury of
passengers - damage to baggage 1. 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. 2. The carrier is liable for damage sustained in case of
destruction or loss of, or of damage to, checked baggage upon condition only
that the event which caused the destruction, loss or damage took place on board
the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not
liable if and to the extent that the damage resulted from the inherent defect,
quality or vice of the baggage. In the case of unchecked baggage, including
personal items, the carrier is liable if the damage resulted from its fault or
that of its servants or agents. 3. If the carrier admits the loss of the
checked baggage, or if the checked baggage has not arrived at the expiration of
21 days after the date on which it ought to have arrived, the passenger is
entitled to enforce against the carrier the rights which flow from the contract
of carriage. 4. Unless otherwise specified, in this Convention the term
“baggage” means both checked baggage and unchecked baggage».
[2] Art. 35 Montreal Convention 1999 «Limitation of
actions 1. 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. 2. The method of calculating that
period shall be determined by the law of the court seised of the case».
[3] See J.I. GARCÍA ARBOLEDA, sub Article 35, in The Montreal Convention. A
Commentary, edited by G. Leloudas, P.S. Dempsey and L. Chassot, Celtenham
2023, 423 at 425; according to him, Article 35 of the Montreal Convention of
1999 is essentially identical to Article 29 of the Warsaw Convention of 1929,
with only minor modifications. In Article 35(1), the phrase «a period of» was
added before «two years», and in Article 35(2), the
word «that» replaced «the», and «of limitation» was removed. The drafters of the
Montreal Convention of 1999 (Article 35) maintained the essence of Article 29
of the Warsaw Convention of 1929 with no significant changes. That was made
with clear intention and demonstrates a commitment to preserving the original
framework.
[4] C-532/18 also known as Niki
Luftfahrt’s case. In this case during the flight, a passenger was served a
glass of hot coffee, which, once placed on the small table in front of it,
spilled onto the right thigh as well as onto the chest of the minor son of the
passenger seated next to him, causing second-degree burns to the child. It is
unclear whether the coffee spilled due to a defect in the folding table or as a result of the plane’s vibrations. The Oberster
Gerichtshof has referred the following question to the Court for a preliminary
ruling: whether a hot coffee cup resting on the front seat table slipping and
toppling over for unspecified reasons during the flight of an aircraft, as a
result of which a passenger suffers burns, constitutes an «accident» involving
the carrier’s liability under Article 17(1) of the Montreal Convention.
[5] Art. 29 Montreal Convention 1999 «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 without prejudice to the question as to who are
the persons who have the right to bring suit and what are their respective
rights. In any such action, punitive, exemplary or any other non-compensatory
damages shall not be recoverable». See L.
CHASSOT, P.S. DEMPSEY, sub Article 29, in The
Montreal Convention. A Commentary, cit., 322; The main objective of Article
29 is to safeguard the uniform liability regime of the Convention from being
undermined by national law, which could jeopardize its effectiveness. However,
it is crucial to ensure that the Convention’s liability regime is not
undermined by conflicting national laws. It is important to note that while the
principle of treaty supremacy over national law (pacta sunt servanda) is
acknowledged in most jurisdictions, the Convention’s liability provisions do
not necessarily override national law regimes when applied by courts in private
law disputes.
[6] Art. 267 TFEU «The Court of Justice of the European
Union shall have jurisdiction to give preliminary rulings concerning: (a) the
interpretation of the Treaties; (b) the validity and interpretation of acts of
the institutions, bodies, offices or agencies of the Union; Where such a
question is raised before any court or tribunal of a Member State, that court
or tribunal may, if it considers that a decision on the question is necessary
to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal
of a Member State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a
Member State with regard to a person in custody, the
Court of Justice of the European Union shall act with the minimum
of delay».
[7] L. GOLDHIRSCH, Definition of “Accident”:
Revisiting Air France v. Sak, in Air & Space Law 2001, 87. In Sethy
v. Malev-Hungarian Airlines, 2000 US Dist. Lexis 12606 (SDNIY, 2000), a
passenger was injured while boarding the plane due to a piece of luggage in the
aisle. Although this incident may appear to be an «accident» under the
convention, the court ruled that it was not an «accident because a bag in the
aisle of an airplane during boarding is not unexpected or unusual».
According to the court’s decision, the plaintiff did not present any evidence
of an incident that could be considered a deviation from standard boarding
procedures or identify any actions by airline
personnel that could have caused his injury. Additionally, the court
acknowledged that bags are commonly stored in various locations in the cabin
prior to a flight.
[8] See A.J. HARAKAS, R. LAWSON KC, sub Article 17, in The Montreal Convention. A Commentary, cit., 161 ss.; Article 17(1) of the Montreal Convention corresponds to Article 17 of the Warsaw Convention of 1929 and is materially the same. While the first sentence of paragraph 1 of the draft Article presented to the Montreal Diplomatic Conference, which gave rise to the Montreal Convention 1999, is identical, the second sentence of the draft was not included. It is worth noting that the draft Montreal Article was based on Article IV of the 1971 Guatemala City Protocol, which resulted in the use of the term «personal injury» instead of «bodily injury» and «incident» instead of «accident». This change seems to broaden the scope of carrier liability to passengers to one of strict liability. See also M. BADAGLIACCA, L’accident e la responsabilità del vettore aereo nel trasporto di persone, Roma 2024, 59.
[9] S. ZUNARELLI, M.M. COMENALE PINTO, Manuale di diritto della navigazione e dei trasporti, I, Milano 2023 (ZUNARELLI, COMENALE PINTO), 450. The Montreal Convention, which is the successor to the Warsaw Convention, governs liability in the event of death or injury of passengers, loss of/or damage to cargo and baggage in transit, and delays in the carriage of passengers, baggage and cargo. The scope of this provision does not extend to cases where the carriage is not performed, even if such non-performance is due to overbooking or cancellation of the flight, which are covered by Regulation (EC) No 261/2004 adopted by the Community legislator. G. GIANNA, La tutela del viaggiatore, Milano 2016, 5.
[10] A. ZAMPONE, La Convenzione di Montreal del 1999 sul trasporto aereo nell’interpretazione della Corte di Giustizia Europea, in Diritto dei Trasporti 2020, 2.
[11] A. ZAMPONE, La Convenzione di Montreal
del 1999 sul trasporto aereo nell’interpretazione della Corte di Giustizia
Europea, cit., 4 ss. E. LENZONI MILLI, Corte di Giustizia UE 12 maggio
2021, in Diritto dei Trasporti 2022, 392. The Montreal Convention must be interpreted under
principle of good faith according to common sense considering its purpose and
use according to customary international law, which binds the Union.
[12] ZUNARELLI, COMENALE PINTO (ft. 9)
467; G. PERONI, L’Unione europea rafforza i diritti del passeggero aereo,
in Annali Italiani del Turismo Internazionale vol. III, 2006, 58 ss. The regulation of air transport has
also been overlaid by the Community regulations contained in Regulation (EC)
261/2004 of February 11, 2004, which establishes common rules on compensation
and assistance to passengers in the event of denied boarding, cancellation or
long delay of flights.
[13] A. ZAMPONE, La Convenzione di Montreal del 1999 sul trasporto aereo nell’interpretazione della Corte di Giustizia Europea, cit., 5. E. LENZONI MILLI, Corte di Giustizia UE 12 maggio 2021, cit., 392. L. SECCHIAROLI, La Corte di Cassazione, Sez. III, 14 luglio 2015, n. 14666 qualifica il concetto di “evento” – “accident” di cui all’art. 17, primo comma, della Convenzione di Montreal del 1999. Aggiornamento giurisprudenziale, in Il Diritto Marittimo 2015, 589.
[14] A. ZAMPONE, La nozione di «accident» nella Convenzione di Montreal 1999 e la «contributory negligence» del passeggero, in Diritto dei Trasporti 2021, 2021, 3. Secchiaroli, (ft.13) 593. The author explains that the Italian translation of the Convention has generated interpretive discussions because doubts have arisen about the correct meaning of the term «event», which the Italian legislature used to translate the word «accident». E. LENZONI MILLI, Corte di Giustizia UE 12 maggio 2021, cit., 398 et seqq. A. BOVIO, L. MASTROMATTEO, La responsabilità del vettore aereo nella Convenzione di Montreal, in Il Nuovo Diritto delle Società 2012, 69.
[15] C. IORIO, La nozione di “incidente” nell’ambito della responsabilità del vettore aereo per le lesioni personali subite dai passeggeri, in Rivista Italiana di Diritto del Turismo 27, 2022, 247 et seqq.
[16] N. LIBERATOSCIOLI, La nozione di
accident per il risarcimento dei danni al passeggero aereo, in Diritto
del Turismo 3, 2008, 2008, 260 et seqq. The author in contrast with the current case law
explains that all the terms don’t define in the convention should be
reconstructed according to the concepts and definitions valid for Lex fori,
in contrast with: E. LENZONI MILLI,
Corte di Giustizia UE 12 maggio 2021, cit., 400; she believes they need to
be interpreted according to the rules of interpretation of general uniform
international law.
Secchiaroli (ft.13), 591. The Court of Appeal of Tourin emphasized that the applicant must prove the requirements set by Article 17(1) of the Montreal Convention, in particular the presence of an «accident» understood as an exceptional event, caused by factors external to the passenger and unpredictable. The air carrier is only required to provide releasing proof of its liability if the passenger has first proved these elements. D. BOCCHESE, La nozione di “accident” nella giurisprudenza della Corte di Giustizia dell’Unione europea, in Rivista italiana di Diritto del turismo 2022, 112 et seqq.
[17] ZUNARELLI, COMENALE PINTO (ft. 9),
444 et seqq. The ratification
expansion of the 1999 Montreal Convention has reduced the significance of the
Warsaw Convention. However, the Warsaw Convention remains the basis for all
subsequent developments in air transport regulation.
[18] Also cited in L. TULLIO, Aspetti concreti della prova dell’accident nel trasporto aereo di persone, in Rivista del diritto della Navigazione 2020, 1122.
[19] D. DIGIACOMO, The End of an Evolution: From Air
France v. Saks to Olympic Airways v. Husain - The Term “Accident” under Article
17 of the Warsaw Convention Has Come Full Circle, in Pace International
Law Review 2024, 411 s. In Husain v. Olympic Airways, a man died
from a fatal asthma attack after repeated requests from his wife to the crew to
move her husband out of the smoking section. The District Court determined
that, due to a known medical condition, the flight crew’s failure to relocate
Husain’s seat constituted an «accident» under Article 17.
[20] N. LIBERATOSCIOLI, La nozione di accident per il risarcimento dei danni al passeggero aereo, cit., 261. M.M. COMENALE PINTO, La sindrome della classe economica, in Il trasporto aereo tra normativa comunitaria ed uniforme, edited by R. Tranquilli Leali, E.G. Rosafio, Milano 2011, 11 et seqq. The author considers that the jurisprudence on deep vein thrombosis in air transport, formed in the various jurisdictions related to the Warsaw Convention system, seemed to be clearly oriented to exclude the compensability of damages arising from this type of eventuality, in the wake of the first known decision, adopted by the Supreme Court of the State of New York in 1976, with the support of the prevailing literature. Secchiaroli (ft.13), 589.