Pets as baggage in air travel - CJEU in Iberia (C-218/24)

From an outsider's perspective, the recent judgment may appear controversial. "Pets as baggage" is likely to strike non-lawyers as dehumanising - suggesting that animals are treated as mere objects. However, lawyers may appreciate the legal advantages of such classification. Under international travel rules, such as the Montreal Convention, categorising pets as baggage can trigger compensation mechanisms if they are lost, or damaged, during transit. But does this legal framing actually benefit pet owners? 

In the given case, passengers on a flight from Buenos Aires (a city known for its large dog population) to Barcelona were travelling with a dog. Due to its size, the dog could not be accommodated in the cabin and was instead to be placed in the aircraft hold, inside a special pet carrier. The owner checked in the pet carrier, but tragically, "the dog left the pet carrier, ran around in the vicinity of the aircraft and could not be recovered" (para 16).

The Montreal Convention standardises compensation for lost baggage, unless passengers make a "special declaration of interest in delivery at destination" during check-in, and pay any required surcharge. In this case, the dog's owner did not make such a declaration. The legal issue then became whether the owner could claim compensation for non-material damages, or whether the Montreal Convention's baggage rules limited such claims. Spanish law recognises pets as sentient beings, and thus does not equate their loss with that of material things typically found in baggage (para 19).

The CJEU emphasised that the Montreal Convention is designed to define the limits of air carriers' liability for transporting passengers and their baggage (para 23). Since the Convention does not explicitly define "baggage," the term must be interpreted uniformly and autonomously (para 26). 

While the ordinary meaning of "baggage" refers to objects (para 29), the CJEU noted that for the Montreal Convention to apply to pets, they must be classified either as "passengers" or "baggage". Given this binary, the Court found "baggage" to be the more appropriate legal category (paras 33-34). Importantly, the Convention's liability limits for lost baggage cover both material and non-material damages, meaning the pet's owner could not claim further compensation from the air carrier (para 41).

This ruling ultimately favours air carriers by providing greater legal certainty regarding the types of claims passengers can make for lost items - including pets. It also shields carriers from the complexities of differing national laws on non-material damages. The decision reflects the pragmatic logic of international air travel law.

Delayed bags, immediate compensation rights - CJEU in Iberia (C-292/24)

On June 5, the CJEU issued a new judgment interpreting the Montreal convention, which governs rules for international air carriage, in the case Iberia (C-292/24). 

The case arose when passengers traveling from Frankfurt am Main (Germany) to Panama City (Panama), with a layover in Madrid (Spain), discovered that their checked-in luggage had not arrived in Panama. They reported the baggage as lost to Iberia and informed the airline that, unless they received an update within three days, they would buy replacement items and continue with their travel plans - which they ultimately did. They also had to rebook their outgoing flights from Panama City due to the delay. The luggage was eventually delivered to Panama City five days after their scheduled arrival. The passengers subsequently sought reimbursement for the cost of replacement items, additional travel expenses, and the rebooked flights. 

The legal question concerned the interpretation of the reporting deadlines set out in Article 31(2) of the Montreal Convention in cases of delayed or lost baggage. Article 31(2) states that 

'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 and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.'

The key issue was whether this deadline prevents passengers from claiming compensation for damage caused by a baggage delay before the baggage is returned, or whether they may do so only after they receive the baggage as the full scope of their damage may only then materialise. 

The CJEU adopted an interpretation of Article 31(2) of the Montreal Convention that is favourable to passengers. It held that passengers may submit a claim for damages arising from delayed baggage before the baggage is returned. According to the Court, the 21-period specified in Article 31(2) marks the latest possible moment to file a complaint - but not the earliest (para 20). By applying a literal interpretation of the provision, the CJEU found that passengers are entitled to submit a claim for compensation at any time between the moment their baggage is delayed and the expiry of the 21-day period following its return (para 21). 

Interestingly, the CJEU also noted that this interpretation benefits air carriers, as well. Early notification allows airlines to investigate the situation promptly, potentially mitigating the damage, and collect evidence to demonstrate that they took all reasonable steps to prevent the harm (paras 29-30).

The missing suitcase - CJEU in Vueling Airlines (C-86/19)

Last week the CJEU issued a judgment in the Vueling Airlines case (C-86/19) deciding on the liability of air carriers for lost or damaged checked in baggage. As a reminder to our readers, this area of air passenger rights is not regulated in Regulation No 261/2004, but rather in the Montreal Convention.

The checked in luggage of the passenger in the given case never arrived at the final destination, which led the passenger to claim the maximum amount of compensation provided in Article 22(2) of the Montreal Convention - 1131 of Special Drawing Rights (SDR) (which would currently amount to ca 1376 Euro) - to compensate them for both material and non-material damages. The air carrier acknowledges its liability but wants to limit its compensation to the passenger to EUR 250 for all suffered by passenger losses. The passenger did not indicate the contents of the baggage, its value or weight, nor provided receipts for items bought to replace the lost items. Instead the passenger relies on the fact that loss of baggage is the most serious ground for liability of air carrier in Article 22(2) Montreal Convention and, therefore, should be awarded by the maximum amount of compensation provided in it. The referring courts indicates the different practice of national courts in awarding compensation in such cases: some courts require evidence as to specific passenger losses, others do not. Therefore, the CJEU is asked for its guidance.

The CJEU confirms first that Articles 17(2) and 22(2) Montreal Convention read jointly indicate that the amount of compensation for the lost baggage is not a fixed sum payable automatically to the passenger, but rather indicates the maximum amount of compensation that the air carrier needs to be prepared to pay when they are liable (para 35). This is not a surprising interpretation, as the previous case law on the Convention was also clear in indicating that these provisions aim to set absolute limits to the air carrier's liability, absent passengers indicating separately and explicitly a higher value of their checked in luggage, rather than regulate it on a fixed level (see e.g. our previous comment on Walz judgment).

The second question was more interesting: How are national courts to determine the amount of payable compensation? The answer to it is not surprising either, however, but rather deeply rooted in the limitations of the EU Law in relation to procedural matters. The CJEU is only able to indicate that the Montreal Convention leaves it to the national rules of evidence to determine how passengers are to prove the suffered losses, with the caveat that the national procedural rules must comply with the principles of effectiveness and equivalence (para 44). Already in the previous case - Espada Sanchez and Others (see our previous comment here) - the CJEU has confirmed that the burden of proof as to the value of the baggage is on the passenger (para 37). The CJEU mentions that the passengers could e.g. be asked to present receipts for items purchased to replace lost luggage, documents confirming the harms suffered as the result of the loss (para 41). When the passenger does not produce any such documents, the courts could consider the weight of the luggage, whether it was lost on an outbound or return journey, but any such assessments need to be made in consideration of the case as a whole (para 42). As it is the air carrier who is likely to have the record of the weight of the luggage, the national court may require them to help with providing evidence thereof (para 43).

Split jurisdiction for claims under Reg 261/2004 and Montreal Convention - CJEU in Guaitoli and Others (C-213/18)

Since the adoption of Regulation 261/2004 on air passenger rights, its compatibility with the Montreal Convention has been questioned (see e.g. case IATA, C-344/04). In a judgment issued today in the Guaitoli and Others case (C-213/18) the CJEU once again had to address how EU law impacts claims for compensations made by air passengers, when the air traffic is subject to regulation by international treaties, as well. This time it was the application of Brussels I bis Regulation (on jurisdiction) that was particularly problematic.

Facts

Passengers in this case were flying with easyJet (headquarters: UK) from Italy, where they lived, to Greece. Their flight to Greece was first delayed and eventually cancelled, and they have not been provided with any assistance (e.g. meals or drinks), reimbursement or compensation. The passengers filed a claim with the Rome District Court for compensation pursuant to provisions of Regulation 261/2004 as well as material and non-material damages following breach of contractual obligations by the air carrier. For national courts it proved problematic that part of the passengers' claim was covered by EU law and part by international law. The result of such a combined case could have been that different courts could be applicable to adjudicate over different parts of the same claim.

Short recap of the law

Art. 7 Regulation 261/2004 determines that passengers of cancelled flights may claim compensation from an operating air carrier. Such compensation may be claimed pursuant to EU law rules on jurisdiction, which used to be set by Brussels I Regulation, and now are regulated by Brussels I bis Regulation (Regulation 1215/2012). Generally, in cases of claims for breach of contract, the courts for the place of performance of the obligation that has been breached would have jurisdiction (Art. 5(1)(a) Brussels I Regulation and Art. 7(1)(a) Brussels I bis Regulation). The place of performance of air transport services has been previously determined as either the place of departure or of arrival of the air plane, subject to the applicant's choice (see e.g. case Rehder, C-204/08).

Art. 12 Regulation 261/2004 allows passengers to claim compensation for 'further damages', which are interpreted as compensation for other damage than the loss of time. Such other damages resulting from a delay in air carriage may then be claimed pursuant to Art. 19 Montreal Convention. Article 33 Montreal Convention specifies that an action for damages pursuant to the rules of this Convention should be brought either 'before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination'.

Main questions

1. The national court inquired which jurisdiction rules are applicable in case of such a joint claim, and whether the claim should be split and adjudicated by different courts. This is relevant as Article 33 Montreal Convention sets out its own jurisdiction rule, which differs from the rule in Article 5 Brussels I Regulation.

2. It was relevant for the national court to establish whether Art. 33 Montreal Convention, if applicable, determined allocation of jurisdiction on a Member State level, or also locally with a given Member State.

Answer

The CJEU has no doubts that the national court should indeed be determining its jurisdiction separately to claims raised within the same case on the basis of Regulation 261/2004 and separately when these are supported by the Montreal Convention (paras. 37 and 43). This follows from separate regulatory frameworks of both instruments (see also case Flight Refund, C-94/14).

In an equally straightforward answer the CJEU affirms that the Montreal Convention determines jurisdiction of courts also between the courts of a given Member State, as it follows from the wording of Art. 33 (para. 51) as well as the purpose of the rule (paras. 52-54).

Conclusion

This is not a surprising judgment, but it is a judgment that complicates the enforcement of consumer claims against air carriers. Unless a passenger chooses to sue the operating air carrier before the court of the carrier's domicile, the jurisdiction may be split between two courts. The preference is thus given to the rights of a defendant. This general procedural rule may, however, be troublesome when carriers refuse to follow their compensatory obligations flowing from EU and international law, knowing that the chances of consumers enforcing their rights (and at different courts, possibly, too!) are slim.

AG Sharpston Opinion in Finnair case : An electronic complaint is a complaint in writing

On the 20^th 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 21^st 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.

Two more decisions concerning air passengers

Today, the Court of Justice of the EU has released two judgements which European consumers/travellers might want to know about. 

In the first one, Case C-139/11 (Joan Cuadrench Moré v KLM), it established that, in the case of passengers seeking damages for the cancellation of a flight under Regulation 261/2004, the time-limits for bringing an action are to be determined by the Member States in accordance with the principles of effectiveness and equivalence in relation to the procedural rules laid down by national law in respect of similar situations. Since the Regulation put in place a system of protection that is additional to those laid down in the Warsaw and Montreal Conventions, the two-year time-limit provided by those treaties does not apply.

In the second decision, Case C-410/11 (Pedro Espada Sánchez and Others v Iberia), the Court was called to interpret the just-mentioned Montreal Convention, or the Convention for the Unification of Certain Rules for International Carriage, to which the EU has adhered. 

The question concerned a family of four people (a Spanish couple and their two children) whose luggage went lost during a flight operated by Iberia. The Montreal Convention provides that an air carrier must pay compensation to each passenger, in the event of the loss of his baggage. In the claimants' case, the luggage of all four passengers had been put in two suitcases. The question before the Court, subsequently, was whether it was possible for the family to also claim damages for the luggage which had been not checked in under the requesting passenger's name. 

The court answered that, in light of the Convention's objectives, it must be possible for a passenger to claim damages for the loss of luggage which had been checked in under another passenger's name. The claimant must prove that the lost baggage did in fact contain his belongings. In making its assessment, the national court may take into account the fact that the concerned passengers are members of the same family, that they bought their tickets together or that they checked in at the same time.