Sunday, 8 March 2015

French court awards more than 30 million € compensation over 2009 Yemenia Airlines accident …and highlights few legal issues on international air carrier liability

The French court of first instance (TGI) of Aix-en-Province has awarded damages of over 30 million Euros to the families of 70 passengers, who died at the crash of Yemenia airlines flight IY626 off shore from the Comoros islands on 30 June 2009. This is the second judgment on the case, the first one being rendered by the TGI Bobigny, which awarded about 7 million Euros to the families of three passengers. Some factual and legal parameters of the case are of great interest.

I) The facts

The Airbus A310 carrying out Yemenia flight IY626 had taken off from SanaÕa (Yemen) to Moroni, (Comoros Islands) with 142 passengers and 11 crew on board. Many passengers of the flight had departed from France, which has a strong Comorian community.

The aircraft crashed at about 01:50 a.m. local time, at the sea near the island of Grande Comore, killing everyone on board but a 12-year-old girl. According to the accident report, the main cause of the accident were the inappropriate actions of the crew, which caused the aircraft to stall and crash. Contributing factors were the wind gust of 30 knots near the airport and insufficient crew training. Click here for more details on the accident.

After the accident, there were strong protests in France against Yemenia Airlines, while French officials stated that in 2007 an inspection of the particular aircraft had revealed safety problems and was thus banned from flying to France. As a result, Yemenia decided to suspend flights from France to Comoros Islands in 2009.

The accident investigation was turbulent too. An Yemen official had accused the French accident investigation authority (BEA), which participated in the investigation, of “attacking day and night” and “harassing” the Yemen government. The BEA, in turn, had criticized the delay of the Comorian authorities in the investigation procedures. The report was finally released in June 2013.

II) The law
From a legal standpoint, the case is interesting mainly on procedural grounds.

1. Applicable law

First, on the international instrument applicable to air carrier liability, which could be either the 1999 Montreal Convention or the “Warsaw System”, i.e. the 1929 Warsaw Convention as amended by various instruments. 

The exact applicable instrument depends on each passenger’s place of departure and final destination. Applicable will be the most recent instrument ratified by both the State of departure and the State of destination. However, in the case of round trips with an intermediate stop aboard, the place of departure coincides with the place of the final destination, which means they are in the same State. Thus, if that State has ratified the Montreal Convention, then the Montreal Convention applies.

In this case, the aircraft was flying from Yemen to Comoros islands. Neither Yemen nor Comoros have ratified the 1999 Montreal Convention. In fact, Comoros has only ratified the 1929 Warsaw Convention in its original form, while Yemen has ratified the 1929 Warsaw Convention in the form of 1955 Hague Protocol. However, many passengers had booked a round trip from and to France. Since France has ratified the MC, this Convention applies, irrespective of the (lack of) ratification by Yemen and Comoros Islands.

2) Competent courts

French courts could have jurisdiction under both the Warsaw System and the Montreal Convention. The Warsaw System foresees as competent courts, among others, the courts of the place of departure, or the place of arrival, or the place where the contract was concluded. The MC adds a fifth jurisdiction, which is the court of the place of the passenger’s domicile.

Round trips that departed and ended in France, or booked in France, could establish jurisdiction of French courts to hear the case under both legal instruments.

3) Mental injuries and persons entitled to sue

Both the Warsaw System and the MC allow for mental injuries to be awarded in case of an accident, pursuant to the provisions of national law. National law also determines the persons entitled to sue for compensation.

In the case at hand, claimants preferred to sue in France, also in order to claim higher mental injuries.

Furthermore, it is noteworthy that the airline sought unsuccessfully to have the claims of uncles, aunts, nephews and nieces rejected, because such persons lacked a close lien of affection (“ne démontrent pas un lien spécifique d' affection”) with the victims. In the case before the TGI Aix-en-Provence around 650 relatives claimed compensation. The families of the victims had argued that there were close relationships among family members and whole families were on board the aircraft and perished.

You can find media reports on the judgments here (in French) and here (in English).

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