European Union: A Landmark Decision Of The ECJ On The Notion Of Passenger Under Montreal Convention And Regulation (EC) No. 785/2004 On Insurance Requirements

(Case C-6/14, Judgment of the Court (First Chamber) of 26th February 2015, request for a preliminary ruling from the Oberster Gerichtshof - Austria)

On 26th February 2015, the First Chamber of the Court of Justice of the European Union (ECJ) handed down a judgment in a preliminary ruling regarding the interpretation of article 3(g) of the Regulation (EC) No. 785/2004, "on insurance requirements for air carriers and aircraft operators", and article 17, par. 1, of the Montreal Convention requested by the Oberster Gerichtshof, the Austrian Supreme Court.

The dispute submitted to the Austrian Supreme Court consisted in a claim for compensation brought by Mr. Santer against the Austrian air carrier Wucher Helicopter GmbH and its insurance company.

Mr. Santer is employed by Ötztaler Gletscherbahn-GmbH & Co. KG (in short Ötztaler), a company which manages a ski area in the west of Austria, and is responsible for the safety in the glacier area and the slopes. In particular, he decides when avalanches need to be blasted. The blasting of avalanches is carried out from a helicopter.

More precisely, during an "avalanche blasting flight", Mr. Santer as occupant of a helicopter of the defendant, which had a formal contract of carriage with Ötztaler, was seriously injured.

The judicial proceedings came before the Austrian Supreme Court, which posed the question whether Mr. Santer is to be considered a "passenger" essential for the application of the liability regime of the Montreal Convention.

In fact, as this flight was carried out for a specific purpose it was not easy to identify the status of the claimant. Mr. Santer flew as a "guide familiar with the terrain" and had to open the helicopter door at the pilot's command and hold it open in a specific manner and for a particular period of time, during which his assistants had to throw the explosives from the helicopter.

It is worth stressing that, as pointed out by the Austrian Supreme Court, there was no Court of Justice case law in which it defined the concept of "passenger" under the Montreal Convention.

Firstly, the ECJ affirmed that Mr. Santer did not fall under the category of "member of the cabin crew", since the pilot is always authorized to give instructions to anyone on board the aircraft, including passengers.

In this regard, it must be remembered that art. 3(g) of the EU Regulation 785/2004 identifies two categories: "passenger" and "on-duty members of the crew". The first category includes any person who is on a flight with the consent of the air carrier, excluding on-duty members of both the flight crew and the cabin crew, who belong to the second category. The Court clarified that a third category is not contemplated.

Having said that, the ECJ declared that an occupant of a helicopter, who is carried on the basis of a contract between the air carrier and the occupant's employer in order to perform a specific task, therefore, must be considered a passenger within the meaning under Regulation No. 785/2004.

Secondly, the ECJ had to ascertain if a person, who falls within the meaning of "passenger" in art. 3(g) of the EU Regulation 785/2004, also falls under the corresponding category established by art. 17 of the Montreal Convention.

First of all, the Court dispelled quickly the matter about its jurisdiction to give a preliminary ruling concerning the interpretation of the Montreal Convention. The ECJ indeed affirmed that the Montreal Convention forms an integral part of the European Union legal order and the principle is well founded in its case-law.

Even if Mr. Santer had to perform a specific task, there was a "contract of carriage" within the meaning of art. 3 of the Montreal Convention, whose objective was to carry him and other Ötztaler employees from the take-off location to where they had to perform their tasks and then bring them back to the take-off location.

So, if there is a contract of carriage within the meaning of art. 3 of the Montreal Convention, a person who has the status of "passenger" in accordance with art. 3(g) of Regulation No. 785/2004 comes also within the definition of "passenger" pursuant to art. 17 of the aforementioned Convention.

In other words, where a passenger with the characteristics identified by the Court, and who falls within the definition of passenger as per the Montreal Convention, legislation such as articles 17 (Death and Injury of Passengers and following articles) and article 35, among others (Limitation of Actions) of the Convention will be applied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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