| 18th IFTTA Conference Malta 2006
Montreal Convention and
261/2004/EC cases in Hungary
By Dr.
András Salamon advocate, lecturer of Pannon University Hungary
The Osaka case
The
tourist group would have returned from Osaka to Budapest with the regular flight of AUA with transfer in Vienna. The
group was informed at the airport of Osaka that AUA had cancelled the flight with reference to a technical error, and
passengers’ tickets had been rerouted. Members of the tourist group arrived at Budapest with the regular flight
of a Chinese airline with transfer in Peking approx. one day late.
The
travel bureau claimed compensation against AUA pursuant to Articles 5 and 7 of the EU Regulation 261/2004/EC. AUA
refused the claim, referring to the fact that only passengers are entitled to raise any claim against the airline as
the air transport contract has been established between a passenger and the air company embodied by the air-ticket
issued in the name of a passenger.
AUA
refused the claim for compensation of passengers of € 600 per passenger with reference to Paragraph (3) of Article
5 of the EU Regulation. The air company urged that an unforeseeable technical error occurred before departure,
endangering flight security and that there was no way to put a substitute flight into service.
We
have not accepted the argumentation of AUA, and requested the air company to send us the maintenance and checking
protocols of the airplane for the day in question. Such protocols could prove that a really unexpected error had
occurred, endangering flight security, or the error had occurred only owing to negligence in maintenance or repair, or
there was no technical problem, but the air company decided not to start the flight owing to economic reasons due to
the small number of passengers. My letter contained that in case such protocols expressly proving the flight had to be
cancelled owing to a justified technical error, we would waive our claim. In the event that the required documents are
not sent to us, we go to law.
AUA
has not provided us with any documents, and kept on asserting that a technical error occurred, however, it offered
€ 500 per passenger with respect to business interests only, in order to maintain good relations. Passengers
accepted that offer, so we could not unfortunately go to law.
The Hurghada case
The
passenger in question returned from Hurghada to Budapest with the regular flight of Travel Service. It is well known
that Hurghada is a destination of passengers who like to swim and dive. Air companies and travel bureaus generally
advertise Hurghada as a paradise for divers among others.
The
passenger in question realized at the Ferihegy airport that his suitcase has been broken and several things have been
stolen. The passenger in question immediately, on the spot, declared to the competent persons the loss suffered. The
damage caused to the passenger amounted to HUF 450,000 an equivalent of approx. € 1,800. The passenger in question
certified by invoices the value of the brand-new diving equipment which has been missing from the suitcase broken. The
air company compensated the passenger for the loss suffered only to a lesser extent (€ 380 only) referring to the
fact that the air-ticket and the regulations of the company list in detail the objects for which the air company can
refuse to accept responsibility. According to the list the company does not practically accept responsibility for
nothing except for clothes. It has not excluded objects (such as technical articles, arms,
valuables, sports
equipment, etc.) from air transport but the responsibility for damage occurred in them. The air company paid the
countervalue of only those objects (clothes) that have not been listed.
My
letter to Travel Service contained reference to the Schedule of the EU Regulation 2027/97/EC as amended by EU
Regulation 889/2002/EC. In accordance with that Schedule the air carrier shall be obliged to compensate a passenger to
a maximum amount of SDR 1,000 for the damage in his/her luggage. In the case of checked baggage, it is liable even if
not at fault, unless the baggage was defective.
The
baggage of the passenger can be considered checked baggage in accordance with the Montreal Convention. I am of the
opinion that in our case the air carrier is liable even in the case of unchecked baggage as such baggage was delivered
to the air carrier upon boarding. From that moment the baggage ceased to be under the supervision and control of the
passenger. The responsibility of such supervision and control has been assumed by the air carrier, therefore it is
liable even if not at fault for the undamaged arrival of the baggage on time. I requested the air company to pay the
difference between the amount of EUR 380 already paid and the HUF amount equivalent to EUR 1,150 set forth in the
Regulation. The air company refused our claim with reference to Article 27 of the Montreal Convention:
“Nothing contained in this Convention shall prevent the carrier from refusing to enter
into any contract of carriage, from waiving any defences available under the Convention, or from laying down conditions
which do not conflict with the provisions of this Convention.”
The reference to Article 27
in our case is unacceptable as the provisions of Article 26 cannot be disregarded:
“Any provision
tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention
shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which
shall remain subject to the provisions of this Convention.”
I am of the opinion that it
is expressly laid down in Article 26 that the contractual terms and conditions relieving air carriers of liability, are
contrary to the Convention and shall be null and void. I deem that an air company cannot refuse responsibility for
carrying practically any object. There are, of course, objects, which can be excluded from transport, and if
nevertheless a passenger requires carrying such objects, then the air company cannot be held responsible for the damage
occurred in them. In case of not excluding such objects from carriage, the air company shall be liable for such objects
after receiving them for carriage from the passenger.
It is also laid down in
Article 27 that the air carrier is entitled to refuse to enter into any contract of carriage with a passenger. This has
not occurred in our case. The air company has accepted the baggage for carriage and has not refused to enter into
contract, although it could have done that.
The air company has settled the affair out of
court, and paid the requested difference to the passenger.
The Brussels case
The passenger in question
would have travelled to Budapest from Brussels with the regular flight of Malév. After going on board the
passenger was informed by the air-crew on cancellation of the flight owing to technical reasons. The passenger next day
arrived at Budapest with another flight of Malév.
The passenger claimed compensation of € 250
payable in respect of the distance in question as laid down in Article 7 of the EU Regulation 261/2004/EC.
Malév refused such
claim with reference to Paragraph (3) of Article 5 of the Regulation and Article 19 of Chapter III of the Montreal
Convention, laying down that an air carrier shall not be liable for damage occasioned by
delay.
According to information
provided by Malév the flight had to be cancelled owing to the following reasons: The “push-back”
tractor which drags the airplane to the taxiway is operating in a manner that it connects to the main landing-gear
through tensing, by a bar, to the wheels of the airplane, thus moving the airplane. It was raining that day, for this
reason the wheel slipped, and the bar could not suitably be tensed. The wheel spinned, and the machine was turned out
from its fixed state, and the landing-gear was damaged. The captain refused to take off with such landing-gear. The
maintenance crew could not repair the defect within a short time, and as this happened at 11 p.m., Malév could
not ensure a substitute airplane. According to the argumentation of Malév that case was considered an unexpected
and extraordinary event that could not be avoided in spite of taking any reasonable measure.
Our reasons before the court were as
follows:
Article 19 of Chapter III of
the Montreal Convention does not apply to this case. In accordance with the EU Regulation referred to above we claim
compensation, instead of damage, for the loss.
The Hungarian civil law makes
distinction between damage and compensation. Damage is due if the fault/negligence of the responsible person can be
stated, i.e. damage occurred, unlawful conduct of the responsible person was realized, and there was a “cause and
effect relation” between damage and unlawful conduct. In case of damage the material and non-material loss, profit lost, and expenses shall also be paid. In case of compensation the
responsible person shall pay the loss in the thing (and only in that thing) or the amount provided for by the law,
irrespective of the fault of the responsible person.
In my complaint I requested
to pay the amount of compensation laid down in the Regulation, and not damage. The Regulation, nevertheless, uses the
word “compensation”. I am of the opinion that the cause giving rise to cancellation of the flight was not
of a character which could not be avoided by taking all reasonable measures, but it could be prevented and avoided by
taking precautions. The defendant itself admitted that fixation was not suitable.
The plaintiff is interested
neither in who is the responsible person or the person at fault – it is the concern of the defendant –, nor
is the plaintiff is interested in the terms and conditions of the contract concluded by the defendant and the service
providers, the airport.
The standpoint of the
plaintiff is an express and unambiguous one: the flight was cancelled owing to a reason that, as to our opinion, cannot
be regarded as excuse, i.e. a compensation of € 250 is due to the plaintiff.
No decision yet.
| 
