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Articles | Fri 19th Nov, 2021
Claims arising out of carriage of passengers by air are (very largely) governed by the Montreal Convention, in force in the UK in its modified form by operation of Regulation (EU) No.889/2002, which has survived Brexit by reason of s.3 of the European Union (Withdrawal) Act 2018. The Convention as modified is intended to, and does, stand alone as an autonomous instrument providing for jurisdiction and for its own regime on limitation, liability, interim payments and recoverability of loss; but it provides very little assistance as regards how the court considering claims made under the Convention should approach the assessment of damages. Practitioners have therefore fallen into the habit of relying on the law of the forum as informing issue of quantum, but until now there has been no authority on this issue.
Written by Sarah Prager, barrister at 1 Chancery Lane.
Silverman v Ryanair DAC  EWHC 2955 (QB) (judgment handed down 10th November 2021)
What are the practical implications of this case?
Where a person is injured during the course of carriage by air, pursuant to Article 29 of the Convention (s)he may only bring a claim under the Convention; it is not open to the Claimant to bring a claim in contract or in tort. Where the Convention applies, therefore, it is the only cause of action possible. And the Convention not only applies to those incidents occurring during the course of a flight; accidents which take place during the course of embarkation and disembarkation of an aircraft also fall within the Convention regime. So, for example, a person who slips and falls whilst walking through a boarding gate on his or her way to the aircraft may only bring a claim under the Convention, but that claim will be governed by the strict liability regime set out in Article 17.
Historically practitioners and the courts have, as a matter of convenience, applied the law of England and Wales to the quantification of damages under the Convention; but in Silverman v Ryanair DAC  EWHC 2955 (QB) the court was asked to determine once and for all what law applies to this issue under the Convention, and whether it should be the law applicable under the contract or the tortious applicable law. Now that this determination has been made, it is clear that practitioners and courts should follow the decision of the court rather than the habit adopted for the sake of convenience and should not simply fall back on the law of the forum as determining the value of these claims. The rationale behind the decision may very well be read over into the interpretation of the Athens Convention, too, which governs carriage of passengers by sea.
What was the background?
Mr Silverman was injured whilst going down a flight of stairs in the course of embarkation in order to catch a flight from East Midlands airport to Berlin. The airline was Ryanair, whose standard terms and conditions applied to the contract for carriage and provided that Irish law governed the agreement and how to interpret it unless the Montreal Convention provided otherwise. The Claimant therefore contended that Irish law should be employed in the assessment of his loss under the Convention, since the parties had chosen the applicable law of the contract (within the meaning of Regulation (EU) No.593/2008, ‘Rome I’); alternatively that the law of the tort (pursuant to Regulation (EU) No.864/2007, ‘Rome II’) was that of the Republic of Ireland. The Defendant, on the other hand, submitted that the choice of law clause did not apply to the claim and that English Law applied as the law of the tort pursuant to Rome II. The Court held that Irish law, as the tortious applicable law, applied to the remedies under the Convention.
What did the court decide?
Master McCloud noted that the Defendant was in the somewhat difficult position of arguing for the disapplication of the choice of law clause mandated by its own standard terms and conditions. She went on to consider two American cases (Zicherman v Korean Air Lines Co. Ltd (1996) US 217 and El Israel Airlines Ltd v Tsu Yuan Tseng 525 US 1999) and one Australian case (Grueff v Virgin Australian Airlines Pty Ltd  FCA 501) on the interplay between the Warsaw Convention (the forerunner to the Montreal Convention) and the forum’s choice of law rules; and she observed that there was no binding English authority on the point. That said, she adopted the approach taken in the American cases:
“the court in Zicherman determined that Warsaw drafters intended to resolve whether there is liability, but to leave to domestic law (the local law identified by the forum under its choice-of-law rules or approaches) determination of the compensatory damages available to the suitor.”
Because liability under the Convention is not founded upon the existence of a contract, covering as it does gratuitous carriage, the Master concluded that it was based on a non-contractual obligation to which Rome II applied pursuant to Article 4 of that Regulation. The presumptive applicable law was therefore that of England and Wales, as the place where the tort had occurred, pursuant to Article 4(1) of Rome II; but the Master invoked Article 4(3) to disapply the presumptive law of the tort because the cause of action had a ‘manifestly closer connection’ with the Republic of Ireland.
Master McCloud concluded:
“The relationship between the Convention on the one hand, and Rome I and Rome II on the other, is that the Convention governs liability, and Rome II governs forum and choice of law where the Convention does not stipulate applicable law. However the ‘escape clause’ of Art. 4 (3) of Rome II can have the effect that where a contract of carriage is entered into (itself of course governed by Rome I), entered into prior to the tort or delict in question, the existence of a choice-of-law provision in that contract can be a basis for saying that the choice of law provision in the contract displaces the presumption under Rome I Art 4(1) as to applicable law.”
Setting the facts of this case within that legal framework:
“In this instance we have a choice-of-law clause in the contract of carriage and the airline is clearly connected with the jurisdiction in question (Ireland) rather than a jurisdiction unsuitable and unconnected with the case. The question whether in any case Art. 4(3)’s ‘escape clause’ applies is a case-by-case one based on the issue of ‘manifest connection’, but in this instance the existence of such a choice-of-law clause fixing a choice of law which is connected with the airline’s own place of domicile coupled with the very fact of the clear and unambiguous contractual choice of Irish Law, in my judgment satisfies Art. 4(3) and has the effect that for issues of cognisable damage and quantum, the law of this forum relating to choice-of-law clauses operates to hold that Irish law applies.”
The applicable law in relation to questions of quantum was therefore that of the Republic of Ireland.
This article was first published by Lexis Nexis, November 2021.
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