ECJ sheds light on the notion of “accident” under Article 17 of the Montreal Convention
A man and his minor daughter, both Austrian, are travelling between Majorca and Vienna on a flight operated by Niki Luftfahrt: during the trip, the man is served a cup of hot coffee, which, once placed on the tray table of his seat, tips over (it is unknown whether due a defect in the folding tray table on which it was placed or due to vibration of the aircraft) on his daughter, causing her second-degree scalding.
The event described above, after more than three-year litigation, came to the attention of the Court of Justice of the European Union, which was called upon to give a preliminary ruling on the correct interpretation of the concept of “accident” under Article 17, paragraph 1, of the Montreal Convention.
In the course of the proceedings, the airline defended itself based on the assumption that the concept of accident within the meaning of the Montreal Convention requires the occurrence of a hazard typically associated with aviation and should therefore be solely referred to cases where the risk, which subsequently materialised in the injury suffered, be found in the state or conditions of use of the aircraft or any other device used for boarding and/or disembarkation (a condition which reportedly did not occur in the case at issue). More extensive, of course, was the interpretation put forward by the passengers’ lawyer, who accordingly claimed compensation from the company for the damage suffered by the minor.
After assessing said arguments, by judgment of 15 December 2015, the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), upheld the claim for damages on the ground that the damage caused to the child was attributable to an accident resulting from an “unusual event caused by an external action”. Nevertheless, by judgment of 30 August 2016, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) overturned the first-instance judgment, on the ground that Article 17 of the Montreal Convention only covers “accidents caused by an aviation specific risk”.
The passenger then brought a final appeal before the Oberster Gerichtshof (Supreme Court of Austria), which decided to stay the proceedings and submit a question to the European Court of Justice for a preliminary ruling in order to establish whether “a cup of hot coffee, which is placed on the tray table of the seat in front of a person in an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an “accident” triggering a carrier’s liability within the meaning of Article 17(1) of the [Montreal Convention]”.
The judgment of the European Court of Justice, made on 19 December 2019, is based on two fundamental assumptions: (i) the interpretation, to be reconstructed according to common sense, of the notion of “accident”, and (ii) the application of the general system of strict liability provided for by the Montreal Convention.
As a preliminary point, the Court noted that the concept of “accident” is not defined anywhere in the Montreal Convention and, therefore, reference must be made to the ordinary meaning of that concept in its context: accordingly, “accident” should be interpreted as “an unforeseen, harmful and involuntary event” (first assumption).
Such interpretation – which requires nothing other than that the accident occurs on board the aircraft or during boarding or disembarkation without the need for an express functional connection between the accident and the operation or movement of the aircraft – is perfectly consistent with the general regime of strict liability of airlines enshrined in the Convention, according to which, as a rule, air carrier liability is not subject to there being a connection between the harmful event and the air carrier’s conduct (second assumption).
The system of strict liability, which is certainly burdensome, is counterbalanced, as the Court points out, by the possibility provided for by the Convention itself to limit or exempt the carrier’s liability in the event that a passenger negligently contributes to the occurrence of the damage or if unforeseeable and exceptional events occur that could in no way have been foreseen and thus avoided by the carrier.
Therefore, in light of the scope commonly attributed to the concept of accident and based on the basic principles laid down in the Convention concerning air carrier liability, the Court specified that the concept of “accident” covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to clarify whether those situations stem from a hazard typically associated with aviation, thereby highlighting that the carrier bears the heavy burden of proof regarding the possible external causes of the accident or the negligent contribution of the passenger to causing the damage.
In our view, the Court’s interpretation is acceptable, also having regard to general principles enshrined in the Convention. Moreover, any analysis aimed at assessing whether or not a risk is typically associated with aviation would entail at least illogical consequences: how could it be argued that an accident caused during the performance of an on-board service, such as serving coffee and welcome drinks to passengers, is unrelated to aviation? What would be, then, the risks typically associated with aviation? Moreover, the wording of Article 17 expressly refers to accidents that “took place on board the aircraft”, clearly highlighting that the objective data of the harmful event occurring inside the cabin is sufficient.
 Article 17, paragraph 1, reads: “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking”.
 “Convention for the Unification of Certain Rules for International Carriage by Air”, which was concluded entered in Montreal on 28 May 1999 and entered into force, so far as the European Union is concerned, on 28 June 2004.
 Excluding the case at hand from the list of accidents attributable to the companies would result in the extreme conclusion of the punishability of an event even occurring outside the aircraft (boarding and disembarkation activities, as specified by the same Article 17 – e.g. on a boarding bridge or ladder) and the non-punishability of an event occurred during flight.