Primary Rights of Passengers
© Springer International Publishing Switzerland 2015Francesco Rossi Dal PozzoEU Legal Framework for Safeguarding Air Passenger Rights10.1007/978-3-319-08090-1_4
4. Primary Rights of Passengers
Dipartimento di Diritto pubblico italiano e sovranazionale – Department of Italian and Supranational Public Law, Università degli Studi di Milano – University of Milan, Milan, Italy
Francesco Rossi Dal Pozzo
4.1 Air Carrier Liability in the Case of Death or Injury of Passengers
The Montreal Convention ,1 signed on 28 May 1999, is the primary international source on responsibility of air carriers in the case of accidents. This Convention immediately attracts the attention of the jurist for having significantly modified and modernised the principles aimed at regulating the liabilities of air carriers engaged in the carriage of passengers . The Convention introduced significantly innovative elements such as provisions for new evidentiary forms and, in particular, set aside the limitation of debt with respect to liability for bodily harm.2 The adoption of this new international convention became necessary to reintroduce the subject of the safeguard of the interests of users/consumers of air transport , and the need to provide forms of compensation meeting the standards of fairness and reasonableness. That need, which was widely felt in the international community, led to the revision of regulations on international air transport of the Warsaw Convention of 1929.3 In particular, this legislative reassessment concerned the rewording of Article 17 (the first article of the Chapter on the liability of the carrier and extent of compensation for damage) that completely departs from its earlier wording in the Warsaw Convention . The provisions of this Article, combined with Article 21 (Compensation in case of death or injury of passengers) made it possible to overcome the previous limits of carrier liability for bodily harm by introducing a new system of objective liability for damages not exceeding 100,000 SDR (Special Drawing Rights),4 (now 113,100 SDR5) and providing that for damages in excess of this sum the carrier may not limit its liability (the ‘two-tier liability regime system’). Article 21(2) allows carriers to avoid unlimited liability if they can prove that damage was not due to ‘negligence or other wrongful act or omission of the carrier or its servants or agents’, or that it was ‘solely due to the negligence or other wrongful act or omission of a third party’. The negative formulation of the burden of exonerating proof (Article 21(2) is a further innovative element compared to the Warsaw Convention (the latter provided for positive exonerating proof6). If exonerating proof had been kept in the original terms, the risk would have been to expose the carrier liability system to uncertain case law on the criteria for the determination of evidence and its contents. Furthermore, carriers would have found it quite easy then to evade liability in excess of 100,000 SDR (now 113,100 SDR), which is provided for in the case of passenger death or injury , by proving their and their agents’ due diligence, in taking all necessary measures to avoid damaging events, without having to necessarily identify the specific cause bringing them about, thus transferring the risk for damages due to unknown causes to the passengers.
Exoneration from liability was thus to be subject to the exclusion of occurrence of facts arising from unlawful conduct on the part of the carrier or the persons whose conduct the carrier is answerable for, except for the case where damage was solely due to the negligence or other wrongful act or omission of a third party. This provision, approved after intense disagreements during the negotiations stage, is a very clear demonstration of the international legislature’s desire to definitively overcome the concept of limitation of debt for damages to passengers.
It is worth noting that the scope of the Montreal Convention , as indeed that of the Warsaw Convention before it, exclusively applies to international air transport , as defined in Article 1(2), according to which air transport must have at least one stopover in a foreign State to be considered international, even if it is not originally planned. It will not be enough, then, for a journey to be considered international merely because the flight is over a foreign State if the aforementioned main condition is not met.
Despite the Convention’s strongly innovative element, the limit to its application has made for a sometimes complicated coexistence between national and international provisions, thus resulting in an increased burden of obligations on the passengers/users.
Due to the unlikelihood of there being an effective revision of the system of the Convention, the Community decided to adopt a regulation on air carrier liability in the event of accidents causing harm to passengers . This resulted in Council Regulation (EC) No 2027/97 of 9 October 1997.7 The Regulation lays down a series of rules integrating the Warsaw Convention or the different laws applicable to passenger air transport not falling within the definitions of ‘international air transport’.
Fundamentally, the large number of provisions and their fragmented nature arising from their consensual origin drove the EU legislature to consider the creation of one single body of rules, applicable to all air carriers operating within the EU.
Moreover, in the internal civil aviation market , a distinction between national and international transport had become totally anachronistic, and the need to have the same level and type of liability laws within the EC was strongly felt.
To this end the European Community concluded the Montreal Convention on 5 April 20018 by Council Decision 2001/539/EC,9 depositing its instrument of ratification of the Convention, together with the instruments of all Member States.
These considerations brought about the amendment of Regulation (EC) No 2027/97 on 13 May 2002, via Regulation (EC) No 889/2002 ,10 which entered into force on 28 June 2004, the same day the Montreal Convention did in the European Union.
The latter regulation was necessary to adjust Regulation (EC) No 2027/97 , founded on the liability system in case of accidents on the international under the Warsaw Convention , to the Montreal Convention . In its consolidated form it thus, first, implements the provisions of the Montreal Convention on passenger air transport establishing further complementary rules and, secondly, extends the same rules to air transport within just one Member State.
The Montreal Convention will thus have residual application, that is, it is to be applied in all the cases in which EU regulation cannot be invoked.
From the point of view of its contents, Regulation (EC) No 2027/97 specifies minimum amount for damages in relation to accidents that may cause death or injury to passengers, as well as corresponding obligations for air carriers.11
To this end, as we will see in the following Section, under Article 7 of Regulation (EC) No 2407/92, EU air carriers must be insured up to a level that is adequate to guarantee that all entitled to compensation ‘receive the full amount’.
These sums are set out in the Annex to Regulation (EC) No 2027/97 which, however, as might be imagined, allow for exceptions, where admissible, with regard to any higher limits to compensation agreed by contract by individual air carriers or which are imposed by the different national laws of Member States.
4.1.1 Compensation in the Case of Passenger Injury or Death
According to the Annex to Regulation (EC) No 889/2002 , amending Regulation (EC) No 2027/97 , there are no financial limits to the liability for passenger injury or death.
Carrier liability is thus full and unconditional for damages up to 113,100 SDR,12 so that it will not be able to contest related claims for compensation . In the case of claims for compensation above that amount, the air carrier will be allowed to defend itself against it only if able to prove that the damage cannot be imputed to it.
In the case of passenger injury or death, the carrier must make an advance payment, within 15 days from the identification of the person entitled to compensation, to cover immediate economic needs. In the case of death, this advance cannot be less than 18,096 SDR.13
It should be noted, first and foremost, that the Regulation, in line with the Montreal Convention , provides for liability which may be discharged of his liability only by proving that the damage was caused by the negligence of the injured or deceased passenger. Moreover, Regulation (EC) No 2027/97 , as amended by Regulation (EC) No 889/2002 , unlike the provisions in its original text, and in Article 17 of the Montreal Convention, omits adding the term ‘bodily’ to ‘harm entitling to compensation’.14
This broader provision is not insignificant. For instance, in USA case law, there have been many instances of harmful incidents suffered by passengers that were imputed to the carrier’s direct liability, connected, however, to direct or indirect ‘bodily harm’.
Current EU legislation, on the other hand, generically refers to the concept of ‘injuries’ without offering any sort of definition, thus allowing the inclusion of harm relative to the passenger’s psychosomatic or psychological state. The more protective nature of the European regulation compared to international ones appears greatly enhanced (in the definitive text of the Montreal Convention there was no mention of the proposal, put forth during the negotiating phase, of provisions for so called mental injury).
4.2 Air Carrier Obligation of Insurance to Cover Possible Harm to Passengers
Still within the context of the relationship between the users/consumers and safety in air transport, another extremely significant aspect concerns the insurance system and its ability to cover carriers’ liability in respect of passengers, luggage, cargo, and third parties.
At international level, it is, once again, the Montreal Convention of 1999 which must be referred to.15
A new, innovative element of this Convention is Article 50 (Insurance). Article 50 requires all carriers registered in signatory States to have sufficient insurance to cover all their liabilities. Furthermore, the Article enables any State, party to the convention, to require any carrier operating within its territory to furnish evidence of its meeting the requested insurance requirements.
At EU level, the prime source of rules on insurance cover required of air carriers is Regulation (EC) No 2407/92, part of the so called ‘Third aviation package’ of 1992.16 Article 7 of the Regulation introduced the obligation for airlines to be insured to cover liability in case of accidents in particular in respect to passengers , luggage, and cargo. The same obligation was then included in Regulation (EC) No 2027/97 .
Due to the difficulties encountered by airlines in trying to comply with these requirements, with the resulting disparity of treatment to passengers,17 and in response to the incredibly critical situations which emerged in insurance coverage in the wake of the 9/11 attacks, the Commission in 2002 proposed the adoption of a new, more clear-cut regulation, capable of ensuring an adequate passenger protection. This is the above-mentioned Regulation (EC) No 889/2002 ,18 amending Regulation (EC) No 2027/97. This provision was also adopted in order to bring EU law into line the Montreal Convention with the aim of creating a uniform liability system for international air transport .
At the moment, legislation on air carrier insurance is to be found in Regulation (EC) No 785/2004 of 21 April 200419 which, for the first time, fixed minimum requirements both for commercial and non-commercial flights.20
The scope of the Regulation concerns only carriers operating flights within a Member State, departing from or arriving in one of its airports, or flying over it.21 Where the latter are over-flights by non-EU air carriers , or by aircraft registered outside the EU, which do not entail landing or taking off from any Member State, or whether there is a possibility of technical stopovers in Member States by such aircraft, over flown Member States may nonetheless require the air carriers and aircraft operators to produce evidence of valid insurance as required by the Regulation.
Regulation (EC) No 785/2004 provides for different insurance coverage, as regards amount of cover, in respect of liability for passengers, baggage or cargo.
In particular, minimum insurance cover for passengers amounts to 250,000 SDR per passenger,22 for luggage it amounts to 1,131 SDR per passenger in commercial operations, and for liability in respect of cargo, minimum insurance cover is 19 SDR per kilogram, in commercial operations.23
The aim of these provisions is, then, to ensure that users of air travel suffering damage can receive adequate compensation, to be calculated in SDR (Special Drawing Rights), which represent a claim to currency held by IMF member countries, for which they may be freely exchanged, that is a unit whose exchange rate changes daily.
These are reference values that may be modified whenever they reveal themselves to be inadequate. At the same time, the Regulation does not encroach on rules on liability deriving from international conventions, from EU law, and Member State domestic law.
The Commission, with its communication of 24 April 2008,24 sought to take stock of its application, 3 years after the entry into force of the Regulation. The Commission’s report was positive about the results achieved from its adoption, declaring it to be clear and straightforward to understand and apply. Moreover, the Commission also wished to highlight that carriers and aircraft operators shown their willingness to comply with the insurance requirements by submitting the relevant insurance certificates to the competent authorities of the Member States. The Commission in its communication stressed how unnecessary it was to amend the structure of the Regulation. Indeed, since then, the only change has been the adoption of Commission Regulation (EU) No 285/2010 of 6 April 2010,25 which amended the minimum level of insurance for liability in respect of passenger baggage and cargo. The amendment was rendered necessary by the need to bring EU law into line with the new limits of Montreal Convention carrier liability provided for by ICAO.26
4.3 The Rights of Persons with Reduced Mobility
Amongst the primary rights to which passengers are entitled, such as the right to life and right to obtain information closely linked to it, the right to human dignity and to non-discrimination are recognised as being particularly applicable to persons with reduced mobility. These rights are expressly provided for both internationally and within the EU. This is important also because people with reduced mobility represent a significant proportion of passengers , and include not only persons with disabilities, who are calculated to be around 45 million in the EU alone or 10 % of the overall population, but also other people who are unable to travel by aeroplane without assistance, such as the elderly, who often complain of having major difficulties when negotiating with many of Europe’s biggest airports.
At an international level, the rules aiming at ensuring access to air travel to persons in need of particular assistance are to be found in Annex 9 (Facilitation)27 to the Chicago Convention . The Standard and Recommended Practices on Facilitation were adopted for the first time on 25 March 1949. Most of the rules on facilitating access to air transport to persons with disabilities were, however, introduced during the 11th meeting of the ‘FAL Division—Facilitation division’. During the meeting the adoption of Section H of Chapter VIII of the Annex was proposed containing the extant provisions on access to air transport for people with disabilities and the principles already set out in the explicatory material to Annex 9.28 This initiative was strongly endorsed and supported by many States, well aware of the importance of the matter.
In particular, the Member States of the European Civil Aviation Conference (ECAC) proposed the adoption of a number of rules, mostly on the right to access necessary information for persons with reduced mobility and providing for explicit obligations for the managing bodies of airports, tour operator, and airlines, in order to adequately assist such persons with special needs. The obligations ranged from the special equipment aircraft were to be fitted with, through special positioning of the seating in order to allow quick evacuation of the aircraft if necessary, to the assistance to be provided on board and access to airport facilities.
For the purposes of Section H (Facilitation of the transport of passengers requiring special assistance) of Chapter VIII (Other Facilitation Provisions) a person with disabilities is: ‘any person whose mobility is reduced due to a physical incapacity (sensory or locomotor), an intellectual deficiency, age, illness or any other cause of disability when using transport and whose situation needs special attention and the adaptation to the person’s needs of the services made available to all passengers.29
Section G is divided in the following main parts: (i) General; (ii) Access to airports; (iii) Access to air services. The provisions they contain are mostly ‘Recommended Practices’ and apply, save for specific instances, to all types of aircraft operations. The most significant of these are Recommended Practices 8.37 and 8.38, according to which passengers should be permitted to determine whether or not they need a third person (an escort). Moreover, they state the right of passengers to travel without the requirement for medical clearance, except in the case where it is necessary in order to guarantee their safety or that of other passengers. In such a case, and only then, airlines can be permitted to require an escort. It will then be for Contracting States to encourage offering discounts for the carriage of the escort.
In the EU, the safeguard of Persons with Reduced Mobility (PRMs) was guaranteed by the adoption, on 5 July 2006, of Regulation (EC) No 1107/2006 ,30 which entered into force on 26 July 2008, with the exception of Articles 3 (Prevention of refusal of carriage) and 4 (Derogations, special conditions and information), which were already applicable from 26 July 2007.
Under Article 2(a) of the Regulation, ‘disabled person’ or ‘person with reduced mobility’ means any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers’. It is noticeable that this definition repeats verbatim the definition used, at an international level, by ICAO.