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Aviation Liability 2021 Aviation Liability 2021 Aviation Liability 2021 Aviation Aviation Liability 2021 Contributing editor Andrew J Harakas © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Aviation Liability [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editor Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Andrew J Harakas The information provided in this publication Clyde & Co US LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the fourth edition of Aviation Liability, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. October and November 2020. Be advised Throughout this edition, and following the unique Lexology Getting The Deal Through format, that this is a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes a new chapter on Austria. © Law Business Research Ltd 2020 Lexology Getting The Deal Through titles are published annually in print. Please ensure you No photocopying without a CLA licence. are referring to the latest edition or to the online version at www.lexology.com/gtdt. First published 2017 Every effort has been made to cover all matters of concern to readers. However, specific Fourth edition legal advice should always be sought from experienced local advisers. ISBN 978-1-83862-307-4 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri- butors to this volume, who were chosen for their recognised expertise. We also extend special Printed and distributed by thanks to the contributing editor, Andrew J Harakas of Clyde & Co US LLP, for his continued Encompass Print Solutions assistance with this volume. Tel: 0844 2480 112 London November 2020 Reproduced with permission from Law Business Research Ltd This article was first published in December 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Global overview 3 Latvia 68 Andrew J Harakas Ivars Mēkons Clyde & Co US LLP Novius Austria 6 Malaysia 76 Martin R Geiger and Irena Gogl-Hassanin Saranjit Singh and Dhiya Damia Shukri Benn-Ibler Rechtsanwälte GmbH Saranjit Singh, Advocates & Solicitors Brazil 13 Netherlands 84 Guilherme Amaral, Nicole Villa and Renan Melo Robert Pessers ASBZ Advogados Van Traa Advocaten Canada 21 New Zealand 92 Michael A Dery, Darryl G Pankratz and Shaun Foster Anna Barnett and Simon Cartwright Alexander Holburn Beaudin + Lang Hesketh Henry Lawyers China 29 Nigeria 100 Leslie Shen and Paul Zhou Etigwe Uwa SAN, Chinasa Unaegbunam, Omolayo Latunji and Wintell & Co Agbada S Agbada Streamsowers & Köhn France 37 Aurélia Cadain Switzerland 109 Kennedys Law LLP Andreas Fankhauser Proton Legal LLC Germany 45 Claudia Hess and Rainer Amann Turkey 116 Urwantschky Dangel Borst PartmbB M Ali Kartal Kartal Law Firm Italy 53 Maurizio Corain, Chiara Santoboni and Mario Barbera United Kingdom 122 R&P Legal Studio Associato Chloe Challinor and Patrick Bettle Stephenson Harwood LLP Japan 62 Mihoko Shintani and Kento Masakane United States 131 TMI Associates Andrew J Harakas, Jeffrey Ellis, Chris Carlsen and Kevin Sutherland Clyde & Co US LLP 2 Aviation Liability 2021 © Law Business Research 2020 United Kingdom Chloe Challinor and Patrick Bettle Stephenson Harwood LLP APPLICABLE TREATIES boarding and cancellation or long delay of flights. See, for example, R (on the application of International Air Transport Association and another) Major air law treaties v Department for Transport, Case C-344/04; Sturgeon and others v 1 To which major air law treaties related to carrier liability for Condor Flugdienst GmbH; Böck and another v Air France SA, Joined passenger injury or death is your state a party? cases C-402/07 and C-432/07; Nelson v Deutsche Lufthansa AG; R (on the application of TUI Travel plc and others) v Civil Aviation Authority, The United Kingdom is party to the following major air law treaties Joined cases C-581/10 and C-629/10; and Dawson v Thomson Airways related to carrier liability for passenger injury or death: Limited (2014) 4 All ER 832. • the Warsaw Convention 1929; • the Hague Protocol 1955; Definition of ‘carrier’ • the Guadalajara Convention 1961; 4 In your state, who is considered to be a ‘carrier’ under the • Montreal Protocols Nos. 1, 2 and 4 1975; and Montreal and Warsaw Conventions? • the Montreal Convention 1999. The term ‘carrier’ usually means the corporate legal entity contracting These treaties have legal effect through domestic statutes or statu- the carriage; it does not extend to ground handling agents and other tory instruments currently in force, all of which have their basis in the service providers. Carriage by Air Act 1961. The United Kingdom is also a signatory to Where actual carriage is undertaken by successive carriers, the the Guatemala City Protocol 1971 and Montreal Protocol No. 3 1975, UK courts consider the following characteristics to be representative of although it is unlikely that these instruments will come into force. successive carriage: The Montreal Convention has force of law in the United Kingdom • the carriage must have been regarded by the parties as a single through EC Regulation 2027/97 (as amended by EC Regulation operation; 889/2002) and the Carriage by Air Acts (Implementation of the Montreal • it must have been divided into separate and successive (in terms of Convention 1999) Order 2002, which amended the Carriage by Air Act both time and place) stages; and 1961. Following the UK’s exit from the European Union (EU), Regulation • the parties must have agreed that the carriage was to be performed 2027/97 has been put into UK law by virtue of the Air Passenger Rights by several successive carriers. and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, which will enter into full effect on 1 January 2021. The English Court of Appeal held that a contract for carriage for the route Manchester-London-Los Angeles-New York-Manchester, where INTERNATIONAL CARRIAGE – LIABILITY FOR PASSENGER all flights were to be performed by British Airways apart from the INJURY OR DEATH Los Angeles-New York flight, which was to be performed by American Airlines, was an example of successive carriage (Collins v British Airways Montreal Convention and Warsaw Convention Board [1982] QB 734). Similarly, the English High Court determined 2 Do the courts in your state interpret the similar provisions of there to be successive carriage in an example where a carrier’s time- the Montreal Convention and the Warsaw Convention in the tables formed part of the contract for carriage and indicated that part same way? of the journey was to be performed by another carrier (Rotterdamsche Bank NV v BOAC [1953] 1 All ER 675). Yes, as a general principle (Barclay v British Airways plc (2010) QB 187). Carrier liability condition 3 Do the courts in your state consider the Montreal Convention 5 How do the courts in your state interpret the conditions for and Warsaw Convention to provide the sole or exclusive basis air carrier liability – ‘accident’, ‘bodily injury’, ‘in the course for air carrier liability for passenger injury or death? of any of the operations of embarking or disembarking’ – for passenger injury or death in article 17(1) of the Montreal Yes, the UK courts have upheld the exclusivity of the Montreal and Convention and article 17 of the Warsaw Convention? Warsaw Conventions as providing the sole basis for air carrier liability for passenger injury or death (Sidhu and others v British Airways plc; The English courts follow the approach of the United States Supreme Abnett (known as Sykes) v British Airways plc (1997) AC 430). Court decision in Air France v Saks as to the meaning of ‘accident’ The exclusivity of these Conventions has been eroded to a certain under the Montreal and Warsaw Conventions, namely that an accident degree by recent Court of Justice of the European Union (CJEU) and is an unexpected or unusual event or happening that is external to that English case law relating to Regulation (EC) No. 261/2004 on denied passenger (see, for example, Deep Vein Thrombosis and Air Travel 122 Aviation Liability 2021 © Law Business Research 2020 Stephenson Harwood LLP United Kingdom Group Litigation, Re [2003] 1 All ER 935). An omission does not consti- Deciding jurisdiction tute an ‘accident’. 8 How do the courts of your state interpret each of the The then House of Lords determined that ‘bodily injury’ means jurisdictions set forth in article 33 of the Montreal Convention a change in some part or parts of the body of a passenger which is and article 28 of the Warsaw Convention? sufficiently serious to be described as an injury (Morris v KLM Royal Dutch Airlines; King v Bristow Helicopters Limited (2002) 2 AC 628). English case law is suggestive that the seat of the board of directors is A psychiatric illness – emotional upset such as fear, distress, grief or the most appropriate test for the ordinary residence of a corporation mental anguish – may be evidence of bodily injury or the description of (Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corpn a condition that includes bodily injury but does not in itself constitute (1981) QB 368).
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