A recent decision in France has reversed a trend, begun in the case of Pakistan International Airlines v Ms Kunze Bejon in 1997, by which the French Courts had been able to assert jurisdiction over air carriers even in the absence of one of the jurisdictions available under the Warsaw Convention jurisdiction. We are grateful to Simon Foreman, partner in the firm of Soulez Larivière & Associés, for his assistance with this article.
On 11 July 2006, the French Cour de Cassation (the Supreme Court for nonadministrative matters) delivered a landmark judgment (in a case arising out of the Kenya Airways accident in Abidjan in 2000) relating to French jurisdictional rules which, going forward, will be of significance both to airlines and their insurers.
The judgment will also come as a blow to plaintiff lawyers who have, in recent years, been able to join airlines into actions in France even where there was no Warsaw jurisdiction against the airline in question. They were able to do this in reliance upon Article 42 of the French Code of Civil Procedure which (like similar rules in many other legal systems) basically states that the courts where a defendant is domiciled have jurisdiction to hear a claim against that defendant. Further (and crucially), that if there is more than one defendant, the French court’s jurisdiction will extend over the other defendants also.
For this reason, France has become an extremely popular jurisdiction for claimant lawyers to bring claims for damages against air carriers in circumstances where France represents a more generous jurisdiction than jurisdictions available under Article 28 of the Warsaw Convention. In particular, the Tribunal de Grande Instance in Toulouse (the Toulouse District Court) suddenly became a fashionable forum to hear cases against airlines from all over the world, whose sole common feature was that they had all operated aircraft from a well-known local manufacturer (i.e. Airbus). Obviously, the most important issue for the Toulouse Court in examining jurisdiction in these cases, was the obvious conflict between French procedural rules and the jurisdictions available against an air carrier under Article 28 of the Warsaw Convention. Lawyers for various airlines argued (as is accepted by most commentators around the world) that the provisions of the Convention are exclusive (pursuant to Article 24 thereof) and that, under Article 28, the plaintiff’s action for damages must be brought "either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination". However, the Toulouse Court decided (in more than one case) to allow claimants to sue all defendants (including the airline), in circumstances where they could correctly establish jurisdiction over a French defendant, even where there was no Warsaw jurisdiction against the airline.
Not surprisingly, the matter found its way up to the Cour de Cassation in 1997 (in the case of Pakistan International Airlines v Ms Kunze Bejon - 25 November 1997) and, in a ruling that until last July reflected the state of the common law in France, the Cour de Cassation upheld the Toulouse Court’s decision on the basis of Article 42 of the French Code. The Court also decided that no provisions of the Warsaw Convention prevent plaintiffs from adding other defendants, including air carriers, into existing proceedings in France where they have correctly established jurisdiction against one of the defendants, provided the claims are related. In other words, the Warsaw Rules were treated as being non-exclusive.
This, of course, opened the floodgates for claimant lawyers, who subsequently sought not only to take advantage of these rules, but also to make France a high damages jurisdiction. The practical effect of this judgment, therefore, was that airlines around the world who were operating Airbus aircraft had effectively acquired French jurisdiction for any claims made against them since claimant lawyers took to issuing proceedings against Airbus (and other aviation interests) in France, even where the case against them had no merit, simply to allow them to join the carrier into the proceedings.
Although they were being sued before their local courts, the situation was becoming increasingly uncomfortable for French entities, who found themselves embroiled in litigation relating to claims for which they had no obvious liability exposure. The main problem was that in such cases (i.e. where they were totally artificial defendants) these entities remained parties to the proceedings until trial, where a final decision was made on the merits. While this effectively represented an abuse of process, French procedural rules provided little comfort to defendants in those circumstances and this was compounded by the fact that French courts traditionally make small awards in relation to costs (which only served to encourage such abuses).
Clearly, this intolerable position could not be allowed to continue and the PIA decision was effectively reversed before the Cour de Cassation in the recent Kenya Airways case. The case related to an accident involving an Airbus A310 aircraft that occurred in 2000 after take-off in Abidjan. Relatives of the passengers sued both Airbus and Kenya Airways before the Toulouse District Court which, in accordance with previous case law, declared itself competent to hear the claim against both defendants and awarded provisional compensation pending the outcome of proceedings on the merits. That decision was confirmed on appeal and Kenya Airways appealed the matter to the Supreme Court. Eventually, on 11 July 2006, the Cour de Cassation quashed the Court of Appeal’s judgment, declaring that Article 28 is directly enforceable and imperative such that the airline could not be joined as a defendant.
This does not, however, provide a final solution and mean that those adversely affected by the previous PIA decision can sleep more easily at night! This is because, at face value, the most recent decision may not prevent third party proceedings being issued against airlines for whom there is no Warsaw jurisdiction in France, even though the claimants themselves may be prevented from bringing a claim directly against the airline in such circumstances. The relevant Warsaw rules only apply to claims brought by passengers so the jurisdictional rules therein could be circumvented by the claimant suing a French manufacturer (e.g. Airbus) in circumstances where the airline is likely to have a liability exposure, even where the case against that manufacturer is weak, in the expectation that the manufacturer will then third party the airline into proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
