‘Exposing a Grave Injustice’: Montreal Exclusivity and the Rights of Disabled Passengers: Stott v Thomas Cook [2014] UKSC 15

Dr Jeremias Prassl

On March 5, 2014 the Supreme Court handed down its judgment in Stott v Thomas Cook (previewed for the UK Supreme Court blog last autumn here). The case had attracted significant interest domestically and internationally, with the claimant supported by the Equality and Human Rights Commission, and the Secretary of State for Transport intervening on his behalf.

Facts

During a journey from Zante, Greece, to East Midlands Airport in the autumn of 2009, the claimant Mr Stott, paralysed and permanently dependent on a wheelchair, suffered from a breach of his rights under the EU’s Disability Regulation (EC) No 1107/2006, as implemented in the United Kingdom by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). The trial judge assessed compensation at £2,500 but saw himself unable to make such an award due to the exclusive application of the Montreal Convention of 1999 (‘MC’).

Thomas Cook had relied on that international convention’s uniform rules governing liability under the contract of carriage by air, suggesting that their exclusive scope of application was a well-established principle in domestic, European Union and international law and that passengers could therefore not seek redress under domestic law. Article 29 MC stipulates that

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 […]

The United Kingdom is a contracting party to the Montreal Convention, the provisions of which have also been incorporated into EU law by Regulation (EC) 889/2002. Giving the only substantive judgment for the Court of Appeal, Maurice Kay LJ had found in favour of the airlines on the basis of Article 29 MC:

The real injuries to [the claimants’] feelings […] were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed. [54]

Judgment

Judgment for the Supreme Court was given by Lord Toulson, with whom Lady Hale and Lords Neuberger, Reed and Hughes agreed. Following a summary of the facts and the relevant provisions in domestic and European Union law, his Lordship turned to a discussion of the Montreal Convention, ‘Article 29 [of which] is the rock on which Mr Stott’s claim for damages foundered’ [32].

Counsel for Mr Stott had suggested that the exclusivity question raised an important point of EU law and that the MC should not be applicable to the present case, which fell outside both its substantive and temporal scope. This could be illustrated by reference to joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc and Case C-344/04 ex parte IATA, where the CJEU had repeatedly found that the provisions of Regulation 261/2004 for compensation and assistance to passengers in case of delayed or cancelled flights were not incompatible with the MC, but rather a complementary regime of passenger protection. In rejecting this point, and the related request for a preliminary reference under Article 267 TFEU, Lord Toulson suggested that EU law as such was not engaged, or in any way manifestly clear, as the CJEU had held in ex parte IATA [at paragraph 42], that claims for damages on an individual basis would be subject to MC exclusivity, and Mr Stott’s claim was so founded.

Counsel for the Secretary of State for Transport, on the other hand, focussed on the temporal dimension of the claim, suggesting that the Regulations had been breached long before Mr and Mrs Stott’s embarkation. This argument, too, was rejected: on the facts, the actual injury had taken place only once aboard the aircraft, and also to avoid ‘encourag[ing] deft pleading in order to circumvent the purpose of the Convention’ [60]. Lord Toulson adopted the reasoning of Sotomayor CJ in King v American Airlines (see discussion below), and held that the quality of the cause of action was irrelevant: the Montreal Convention was designed comprehensively to deal with air carriers’ liability from the moment of embarkation until disembarkation. Continue reading

Compensation for Delayed Rail Journeys: EU Passenger Rights on Track

Dr Jeremias Prassl

Case C-509/11 ÖBB Personenverkehr AG

As discussed in a recent review, the European Union’s involvement in the field of transport regulation can be characterised as a two-stage process: after years of market-liberalisation which brought about cheaper fares and a drastic increase in routes across the continent, passengers have more recently been equipped with direct rights of redress against operators. Whilst such rights have been provided for a wide variety of transport modes, from rail and maritime transport to travel on inland waterways and coach journeys, the vast majority of passenger rights litigation before the Court of Justice (CJEU) thus far has been in the context of civil aviation. The CJEU’s recent judgment in ÖBB Personenverkehr AG breaks with this mould – and is therefore not only an important decision for rail passengers, but also relevant for EU transport law more broadly.

The Legal Framework of Rail Passenger Rights

The legal framework of rail passenger rights is set out in a combination of international and European law: an international measure, the rather unwieldy Uniform Rules concerning the Contract for International Carriage of Passengers and Luggage by Rail, forming part of the Convention concerning International Carriage by Rail of 9 May 1980 (as amended by the Vilnius Protocol of 3 June 1999) [‘CIV’], lays down a basic framework which is then fleshed out by more recent EU legislation, Regulation (EC) No 1371/2007 on Rail Passengers’ Rights and Obligations.

The latter Regulation contains a series of provisions on rail transport, including compensation of the ticket price in case of delay. Under Article 17, passengers have the right to be partially reimbursed for their ticket cost, depending on the extent of delay: 25% in case of delays between 60 and 199 minutes, and 50% thereafter. Delay compensation more broadly, on the other hand, is to be handled according to Article 32 CIV, as appended to the Regulation. Under the latter provisions, railway carriers enjoy a force majeure exception from their liability to compensate passengers from loss or damage arising from delay – including unavoidable circumstances beyond the operator’s control. The Regulation, however, provides for no such exemption in its Article 17; its article 6 explicitly prohibits any contractual waiver or derogation. Continue reading

Case Preview: Hook v British Airways and Stott v Thomas Cook

Dr Jeremias Prassl

Montreal Exclusivity versus EU law – Round II

The Montreal Convention of 1999 (‘MC’) lays down uniform rules governing liability under the contract of carriage by air. It is a well-established principle in domestic, European Union and international law that its provisions are exclusive: passengers cannot seek redress under the domestic law of contracting parties. Article 29 states that

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 […]

It is uncontroversial that a lack of remedy in casu cannot outflank the Montreal provisions – for example in the case of psychological harm which does not fall within the Convention’s notion of ‘damage’ (Sidhu v British Airways). How far, however, does this exclusivity of the Montreal regime extend?

This question has been the subject of extensive litigation in recent years, following the enactment of EU Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Air operators repeatedly challenged its validity, notably by reference to Article 29 MC. In Case C-344/04 ex parte IATA, the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) held that it would be wrong to assume ‘that the authors of the Convention intended to shield [air] carriers from any other form of intervention’ [45] and found that the Regulation’s ‘standardised and immediate assistance and care measures’ were therefore entirely consistent with the MC [48]. Despite significant resistance from industry and academic commentators, the CJEU has repeatedly confirmed this interpretation of Article 29 MC. Continue reading

The Air Passenger as a European Citizen?

Dr Jeremias Prassl

Frank S Benyon (ed), Services and the EU Citizen (Hart Publishing: Oxford, 2013) £55

The most recent volume in Hart Publishing’s Modern Studies in European Law series is a collection of essays edited by Frank S Benyon. Drawing on a series of workshops held at the European University Institute in 2010, its chapters cover a broad range of services regulated under EU law – from Electronic Communications and Broadcasting to Health Care and Transport. The overall goal of the project is an interesting one: to consider the potential interaction of two key topics in EU law – the notion of Union citizenship (Art 20 TFEU), and consumer protection (notably in Art 114(3) TFEU). As the editor puts it in his introduction, might ‘consumer advantages […] not be seen as forming a constituent part of the rights of the EU citizen’?

In keeping with the theme of my recent posts here at EUtopiaLaw, this review focuses on the two substantive chapters dedicated to transportation and travel law, as well as the final chapter, in which the editor draws together the findings of the workshop series. This is a particularly difficult area in which to explore the theme of citizenship: travel is, by definition, not limited to EU citizens: the European Union sees just over a third of worldwide air passenger traffic pass through its airports each year. In drawing a similar conclusion in the final chapter, Frank S Benyon nonetheless makes the crucial point that consumer protection in the field of services is amongst the most directly relevant EU achievements for individual citizens. Continue reading

Reforming Air Passenger Rights in the European Union

261Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004

The enactment of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights has been one of the most successful areas of EU action in the field of consumer protection. At the same time, its provisions have shown their potential to impose significant additional cost on operators, thus leading to persistent compliance problems as airlines repeatedly challenge the validity and interpretation of the Regulation. On March 13, 2013 the European Commission finally heeded calls for reform, putting forward a proposal for a new Regulation to amend and extend the existing regime.

Proposed Changes

There are two broad aims pursued by the Commission’s proposals: the clarification and fine-tuning of the existing Regulation 261/2003, and the introduction of a suite of new passenger rights, underpinned by measures aimed at ensuring the effective application of air carriers’ obligations. The first part of this post sets out the key changes, in particular where the proposals relate to existing provisions as interpreted by the Court. Continue reading

Sturgeon revisited (yet again): Case C-11/11 Air France v Folkerts

Dr Jeremias Prassl

Regulation 261/2004 on common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights continues to trigger litigation in the highest Member State courts. A clear pattern has begun to emerge: following on from an airline’s persistent refusal to comply with compensation or care obligations, a preliminary reference indirectly challenges the validity and / or scope of the Regulation. The Court’s answer is nearly inevitably in favour of the passenger, confirming the validity of the Regulation and purposively interpreting its terms.

Facts and Questions Referred

Mr and Mrs Folkert had booked flights departing Bremen, Germany at 6:30 am, with a scheduled arrival time of 11:30pm in Asunción, Paraguy. Their initial flight was delayed by just under 2,5 hours, but due to two missed connections in Paris and São Palo this resulted in an overall arrival delay of 11,5 hours. The Folkerts brought what might appear (by now) to be a relatively straightforward claim for €600 in compensation pursuant to Article 7(1)(c) of the Regulation (flights in excess of 3,500km distance). Indeed, their case plainly falls within the ECJ’s previous ruling in Case C-402/07 Sturgeon that

passengers whose flights are delayed may rely on the right to compensation laid down in Areticle 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier [61]. Continue reading

Case C-12/11 Denise McDonagh v Ryanair: Volcanic ash and ‘super extraordinary circumstances’

Dr Jeremias Prassl

The European Court of Justice’s decision of January 31, 2013 is the latest in an increasingly frequent series of references for preliminary rulings concerning the interpretation and application of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Following on the heels of the latest failed industry attempts to topple that regulatory regime for incompatibility with the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air and general principles of EU law such as proportionality and non-discrimination, it contains a somewhat unexpected twist: on this occasion, the operating air carrier argues that large-scale airspace closure should not fall into the category of ‘extraordinary circumstances’ which may exempt airlines from compliance with parts of the Regulation. Instead, the introduction of an additional category of ‘super-extraordinary circumstances’ is contended for, in the hope of releasing air carriers from all obligations under the Regulation. Continue reading

Case C-410/11 Pedro Sanchez v Iberia: Shared Baggage, Single Interpretation

800px-Iberia_a321-200_ec-hui_arpJeremias Prassl

At first sight, the question at stake in the ECJ’s decision of 22 November 2012 is beguilingly straightforward: if several passengers bundle their belongings into a single suitcase that is subsequently lost by the airline, can they each claim for their loss up to the relevant cap of 1131 Special Drawing Rights? The Court’s unsurprising answer in the affirmative is, however, important beyond that immediate issue. Its assertion of jurisdiction to interpret the substantive rules of the Montreal Convention of 1999 presents a departure from the existing hybrid approach to the regulation of airline liability resulting from contracts of carriage by air, where a single regime is independently interpreted and applied by national courts.

Background

An air carrier’s liability for the loss of or damage to passenger’s baggage is regulated by Articles 17 and 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention of 1999), which provide for carrier liability to be capped at 1131 Special Drawing Rights. All EU Member States are signatories to this convention, and the Union itself acceded to the Convention by Council Decision 2001/539, with the substantive provisions of the Montreal Convention adopted in Regulation 2027/97 as amended by Regulation 889/2002. The Convention’s goal is to balance the protection of consumers and the economic interests of air carriers, by imposing a system of liability caps in return for generous forum provisions and relatively strict liability standards. Continue reading