On the 20th of December, the AG opinion on Case
C-258/16 Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia (hereafter: Finnair
case) was published. The case concerned the interpretation of Art. 31 of the 1999 Convention for
the Unification of Certain Rules Relating to International Carriage by Air (hereafter:
Montreal Convention) on timely notice of complaints.
Facts of case
Ms Mäkelä-Dermedesiotis travelled from Malaga to Helsinki on
a Finnair flight in 2010. Upon arrival she discovered that items were missing
from her checked-in luggage. On the same day of the flight, Ms
Mäkelä-Dermedesiotis contacted the customer service of Finnair to report the
incident. In that phonecall, she identified the lost items and informed the Finnair
representative of their value. The representative entered the information
provided by Ms Mäkelä-Dermedesiotis into the Finnair electronic information
system. Ms Mäkelä-Dermedesiotis had taken out insurance and received
compensation for her loss and the insurance company, Fennia, was subrogated in
her place in the claim against Finnair. Finnair argued that Ms
Mäkelä-Dermedesiotis had not filed a written claim within the periods laid down
in Article 31 of the Montreal Convention.
Article 31 of the Montreal Convention states that:
1.Receipt by the person entitled to delivery of checked
baggage … without complaint is prima facie evidence that the same has been
delivered in good condition and in accordance with the document of carriage or
with the record preserved by the other means referred to in paragraph 2 of
Article 3
2.In the case of damage, the person entitled to delivery
must complain to the carrier forthwith after the discovery of the damage, and,
at the latest, within seven days from the date of receipt in the case of
checked baggage … In the case of delay, the complaint must be made at the
latest within twenty-one days from the date on which the baggage … [has] been placed
at his or her disposal.
3.Every complaint must be made in writing and given or
dispatched within the times aforesaid.
4. If no complaint is made within the times aforesaid, no
action shall lie against the carrier, save in the case of fraud on its part.’
Questions
The case eventually reached the Supreme Court of Finland
which referred the following 4 questions to the CJEU:
(1) Is Article 31(4) of the Montreal Convention to be
interpreted as meaning that, to preserve a right of action, it is necessary, in
addition to giving notice of a complaint in due time, that the complaint be
made in writing within the times specified, in accordance with Article 31(3)?
(2) If, to preserve a right of action, a complaint must be
made in writing in due time, is Article 31(3) of the Montreal Convention to be
interpreted as meaning that the requirement of writing may be fulfilled in an
electronic procedure and also by the registration of the damage in the
information system of the carrier?
(3) Does the Montreal Convention preclude an interpretation
by which the requirement of writing is regarded as fulfilled where, with the
knowledge of the passenger, a representative of the carrier records in writing
the notice of complaint/the complaint either on paper or electronically in the
carrier’s system?
(4) Does Article 31 of the Montreal Convention subject a
complaint to further substantive requirements than that of giving notice to the
carrier of the damage sustained?’
Opinion
The incident in question, where items were missing from the
luggage but not the luggage itself, is best characterised as damaged baggage
rather than loss of baggage, according to the AG. That is important to ensure
that Art. 31 of the Montreal Convention applies.
The answer to the first question according to the AG is that
the notice under Art. 31 needed not only to be made within the 7-day limit but
also to be made in writing in order to be valid. That is hardly surprising as Art. 31(4) of the Montreal Convention clearly sets out both requirements and any
other interpretation would leave the airline carrier vulnerable
to complaints about damaged luggage that would be difficult to verify.
The real essence of the opinion can be found in questions 2
and 3 which ask whether an electronic record of the complaint via
representative is compliant with the requirement of Art. 31 of the Montreal
Convention to have the complaint ‘in writing’.
In order to answer the second question AG Sharpston
contrasted the main characteristics of written and oral communication. The key
characteristics of written communication are permanence and retrievability,
while oral communication is only recalled from memory and it is difficult to
verify. In other words, verba volant, scripta manent. The question then becomes
whether electronic communication satisfies the requirements of permanence and
retrievability and according to the AG, that is indeed the case. To support her
argument, she points out how it is increasingly common, especially for airline
companies to keep all their records electronically and how limiting the meaning
of ‘in writing’ to a record made in paper would go against the purpose of the
Montreal Convention. (para 44 of AG Opinion).
As Finnair held an electronic record of the complaint it was
always possible to generate a printout of the complaint which would mean that
even a stricto sensu interpretation of ‘in writing’ as ‘in paper’ would be
satisfied. (para 49 of AG Opinion) This is a logical interpretation of the
condition one that reflects technological developments and everyday practice
and is not too onerous for consumers.
This brings us to the third question of whether the consumer
needs to record the complaint themselves or whether someone else can do it on
their behalf and under their direction as was the case here where the complaint
of Ms Mäkelä-Dermedesiotis was recorded by a representative of Finnair.
According to AG Sharpston, the Montreal Convention does not set any
requirements that aim to prove the origin of the complaint, such as signing the
complaint; meaning that the Montreal Convention does not preclude enlisting
help for ‘transforming the complaint he wishes to make into written form’ (see
para 57 of AG Opinion). So, a complaint that originated with the passenger who
decided to report the complaint, as well as its content, that a representative
of the airline assisted to record, is compliant with the requirements of the
Montreal Convention.
Finally, the answer to the fourth question was that there
are no other substantive requirements to be satisfied other than the complaint
to be given in written form in the time limits prescribed.
AG Sharpston provided a convincing and intelligent analysis
of the issues in question which was well grounded in the realities of the
passenger-airline relationship. Airline companies should not be allowed to
circumvent their responsibilities to passengers based on a narrow
interpretation of the law. Accepting that electronic communications constitute
communication ‘in writing’ is logical and consistent with the way companies
function in the 21st century. Overall, this is a welcome opinion
that, if adopted by the Court will make a difference for many consumers in what
is a very common occurrence. This blog will keep you informed you of all the
developments of the case.
