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Jurisdiction under Article 33(2) of the Montreal Convention: the Decision in Akulinina and another v Ifly SA [2022] EWHC 166 (QB)

Articles | Wed 23rd Feb, 2022

The Montreal Convention provides the sole cause of action where a passenger is injured or killed in the course of carriage by air. Article 33 of the Convention sets out the jurisdictional regime applicable in these cases; generally the airline may be sued in the courts of its domicile or of the place of destination of the flight, but there is an additional jurisdictional option arising from the passenger’s domicile. In this case the English High Court considered the limitations of the parameters of this option for the first time. Article 33(2) provides that a claim under the Convention may be brought:

“in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.”

Written by Sarah Prager, barrister at 1 Chancery Lane.

Akulinina and another v Ifly SA [2022] EWHC 166 (QB)

What are the practical implications of this case?

Article 33(2) is clearly intended to cover those situations where an airline operates its services to or from the passenger’s domicile either by way of its own aircraft or under a code sharing agreement. The court accepted that it was irrelevant whether or not the flight in question was operated out of the passenger’s domicile (it was not), but that the question related to the airline’s commercial operations more generally. However, the court held that in this particular case the commercial arrangements between the airlines were unproven and that there was no evidence that the carrier had any involvement in any flights operated out of the passenger’s domicile at all.

The case is an interesting reminder that where a passenger relies on Article 33(2) as founding jurisdiction under the Montreal Convention it is necessary for the airline’s commercial agreement founding jurisdiction to be proven. There must be evidence to show that at the time of the accident the Defendant carrier operated flights to or from the passenger’s home domicile, either itself, or by way of proven agreement with another carrier. It is not enough to seek to draw an inference from close ties between airlines or from the fact that onward flights taking place wholly outside the relevant jurisdiction are operated in close conjunction with flights operating to or from the jurisdiction.

What was the background?

The Defendant, a Greek company, provides VIP air transportation services, mostly by helicopter (but also by fixed wing aircraft) and mainly within Greece (although occasionally to and from other countries). Most of its business is operating passenger flights from airports in Greece to high-end tourist destinations in Greece. These do not include regular or scheduled flights; the aircraft are chartered at the request of customers. It has never operated flights to England, the place of domicile of the passenger at the centre of the claim, although some of its aircraft had capacity to reach the UK from Greece.

The Claimants contended that Ifly operated services for the carriage of passengers by air to and from the UK on another carrier’s aircraft pursuant to a commercial agreement, and that it conducted its business from premises in the UK leased or owned by another carrier with which it had a commercial agreement. They founded that contention on longstanding agreements between Ifly, a resort named Amanzoe in the Peloponnese, and a Swiss company, Aman. English holidaymakers wishing to stay at Amanzoe could book flights aboard Aman’s jet from the UK to Athens, where they would then take an onward flight with Ifly to Amanzoe. The Claimants contended that this arrangement fell within Article 33(2) because Ifly was effectively operating a service aboard Aman’s jet from the UK to Amanzoe.

What did the court decide?

The court rejected the Claimants’ contention. The Claimants found themselves in some difficulty because there was very little evidence available to support their submission that passengers actually flew from the UK to Amanzoe in the way alleged; and none at all in relation to the position at the material time, namely the time of the accident. Even on the assumption that this could be made out as a matter of fact, though, the court was not convinced that the arrangement relied on by the Claimants could be said to fall within Article 33(2). This was because there was no evidence that there was a commercial arrangement between Ifly and Aman at all; and even if there was such an arrangement, whether it allowed for Ifly to use Aman’s premises or aircraft. In the circumstances, the Claimants could not bring themselves within Article 33(2) and the Defendant’s jurisdictional challenge succeeded. In fact, as the evidence had developed, it seemed more likely that passengers travelling from the UK did so on two entirely separate contracts; the first leg of their journey would be provided by Aman, whilst the second leg, from Athens to Amanzoe, was provided by Ifly. This in itself did not lead to any finding that Ifly provided flights to or from the UK, even in the loosest sense.

Case details

  • Court: Queen’s Bench Division of the High Court
  • Judge: Simon Birt QC (sitting as a deputy judge of the High Court)
  • Date of judgment: 28/1/2022

This was first published by Lexis Nexis, 18th February 2022

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