Choix de la juridiction la plus efficace en matière d’accident aérien (Fr)
Technical progress in the transport sector is increasing, at the same time, litigation in the area of air law is evolving.
Faced with this development, the law is intended to govern this mode of transport.
The opposition lies in the fact that the law is national, internal, whereas aviation has an international vocation, which poses the problem of conflicts of laws as well as all questions relating to the responsibility of air carriers.
The last air disaster of July 25, 2000, that of the Concorde, is a tragic illustration of what technical progress and the evolution of this litigation can represent.
With regard to the Concorde case, there is the problem of knowing which courts will be competent, the advantage being that the amount of compensation may vary from one country to another.
Victims' attorneys therefore wish to obtain monies close to the damages received by victims of accidents in the United States, generally much higher than those paid in the rest of the world.
The evolution of the damage therefore varies depending on the jurisdiction and applicable law.
Thus, in the case of the Concorde accident, according to article 28 of the Warsaw Convention of 1929, four jurisdictions can be seized: that of the place of departure of the plane, that of the place of destination, that of the place of issue of the ticket and that of the place of residence of the carrier.
The New Montreal Convention of 1999 establishes the place of domicile of the victims as competent courts.
The cost of the Concorde accident, meanwhile, could reach $ 350 million, according to an expert from the New York-based Insurance Information Institute. (Le Monde July 27, 2000).
We can thus see that the consequences of the choice to found this or that jurisdiction is significant, taking into account the financial stakes involved in compensating victims.
Conversely, for air accidents which would have occurred in a Third World country, the compensation would not be the same, (on January 30, 2000, the flight of Kenya Airways which made the connection Abidjan - Lagos - Nairobi s '' crashed shortly after takeoff from Abidjan airport), and the maximum amount offered by the airline company amounted to 20,000 $ in damages.
To speak of the regime of responsibility in the field of air transport naturally implies to speak of the Warsaw Convention of October 12, 1929, and to recall its principles, both with regard to the rules of jurisdiction applicable and with regard to the regime of responsibility. in evidence.
I- RULES APPLICABLE IN MATTER OF AIR LAW UNDER THE WARSAW CONVENTION:
A. RULES OF JURISDICTION
The concept of international air transport is defined in Article 1 of the Warsaw Convention. The Warsaw Convention allows in its article 28 that the action in responsibility is brought, at the choice of the plaintiff, only in pre-established places, namely:
- The court of the carrier's domicile
- The main headquarters of its operation
- The place where he has an establishment by whose care the transport contract was drawn up - The Court of the place of destination
This action must be brought under penalty of forfeiture, within a period of two years, counting from the arrival at destination, or from the day when the aircraft should have arrived, or from the stop of transport (article 29).
B. REGIME OF LIABILITY
La Convention de Varsovie pose de même les principes de responsabilité, à savoir que le transporteur aérien est présumé responsable (article 17) du dommage survenu, “en cas de mort, de blessures ou de toutes autres lésions corporelles subies par un voyageur, lorsque l’accident qui a causé un dommage s’est produit à bord de l’aéronef, ou au cours de toute opération d’embarquement ou de débarquement”.
Therefore, to trigger the presumption of liability of the carrier, the victim or his dependents will simply have to prove that he suffered damage (following an accident), and that it occurred on board the aircraft during embarkation or disembarkation operations.
The carrier will not be able to escape the presumption of responsibility except the fault of the injured party (article 21), unless he proves that he and his employees have taken all the necessary measures to avoid the damage, or that he they could not take them (article 20).
C. CONCEPT OF INEXCUSABLE FAULT AND AMOUNT OF REPAIR
The limits for compensation in the event of accidental death or injury to passengers currently provided for by the Warsaw Convention are 125,000 gold francs per person (approximately 10,000 $ US or 62,000 FF).
However, by a special agreement with the carrier, the passenger may set a higher limit of liability (article 22.1). This limit was raised to 250,000 gold francs (approximately 20,000 $ US or 124,000 FF) by the Additional Protocol to the Warsaw Convention, known as the “Hague Protocol” (entered into force on August 1, 1963).
Likewise, it is possible that the ceiling provided for by the Warsaw Convention may be exceeded, thereby enabling the victim to obtain full compensation for his damage.
This faculty results from article 25 of the Warsaw Convention which specifies that if an inexcusable fault (the inexcusable fault having been interpreted by the Jurisprudence as an objective fault) can be reproached with the conveyor or its agents (acting in the exercise of their functions), the limits of responsibility of article 22 do not apply.
Faced with the impossibility of reaching an international agreement, many States have, for domestic air transport, increased these ceilings. This is for example the case of France which established the liability limit at 750,000 FF (article L 322-3 of the Civil Aviation Code), or that of the United States and Japan which do not provide for any limitation of liability.
II- RULES APPLICABLE IN MATTER OF AIR LAW UNDER THE MONTREAL CONVENTION:
The Council of the International Civil Aviation Organization met in Montreal in 1999, to prepare a new Convention, to replace the Warsaw Convention of 1929.
The objective of the new convention is not only to abandon the 1929 convention, but also to present a new set of rules governing the liability of the air carrier.
A. NEW JURISDICTIONAL PROVISIONS
Among the new features of the new Montreal Convention is the enlargement of the four jurisdictions under Article 28 of the Warsaw Convention.
Indeed, it introduces a new jurisdiction which is that of the place where the passenger has his principal or permanent residence, if the carrier carries out his activities directly or through a commercial partner in the jurisdiction of this jurisdiction.
Thus, Article 33 of the new Convention provides: "With regard to damage resulting from the death or bodily injury suffered by a passenger, the action in
liability may be brought… in the territory of a State Party where the passenger has his principal and permanent residence at the time of the accident and to which or from which the carrier operates air transport services… ”
The main and permanent residence designating the single permanent and permanent place of stay of the passenger at the time of the accident. The nationality of the passenger is not the determining factor in this regard.
However, this fifth competence is optional and is only applicable under three cumulative conditions of residence, operation and presence.
B. NEW LIABILITY PROVISIONS
On the other hand, the concept of liability for risk or objective ("strict liability") was introduced for accidents, within the meaning of article 17. Under the system adopted, the complainant is sure of obtaining, within the limit indicated, compensation for the damage he has suffered, since the carrier cannot invoke heads of exemption except for the fault of the victim (Article 20).
If he wishes an additional repair, he will have to confront the transporter, who will then be able to prove the fact that the damage does not result from his negligence (article 21-2-a). In addition, an action for damages can only be brought under the conditions and limits of liability provided for in the Convention.
These various provisions reaffirm the principle of the exclusivity of the Warsaw Convention for all claims for compensation associated with the contract of carriage, at a time when the courts sometimes tend to want to apply national law.
We are therefore witnessing an evolution in litigation in the area of air law, litigation which is handled on an international basis. At the same time, there is a unification of transport law, materialized by the birth of a new convention, the Montreal Convention, intended to provide solutions to this same dispute.