Reparation for non-pecuniary damage in air transport accidents (Fr)
Kenneth WEISSBERG, Lawyer at the Paris Bar; Narjess NAOUAR, Student lawyer at the EFB in Paris
This question challenged us during a case which was submitted to the Algerian courts. The facts of the case were as follows: an Algerian national was the victim of a plane crash in 2002 in which 14 people died. The ticket had been issued by Air Algérie for the Algiers - Cairo - Algiers route, but the Algerian company had hired the services of another airline Egyptair. It was near Tunis, where a stopover was planned during the Cairo - Algiers journey, that the disaster occurred. The victim suffered very significant damage, of a psychological, physical and economic nature, which he sought compensation from Air Algérie, Egyptair and Boeing, the manufacturer of the aircraft. The judgment rendered in this case, which was confirmed on appeal, put Egyptair - de facto carrier! - and Boeing, and retained the responsibility of Air Algeria for an amount not yet fixed, an expert report having been ordered for the purposes of determining the damage actually suffered by the victim.
The complainant requested compensation for the bodily and non-material damage suffered by her, basing her action on the Warsaw Convention of 1929.
The convention for the unification of certain rules relating to international air transport was signed on October 12, 1929 in Warsaw. It establishes a uniform international regime and aims to unify in matters of air transport of people, baggage and goods, the rules relating to tickets and the carrier's civil liability.
The Warsaw Convention applies in particular to all international transport of persons by aircraft for remuneration. When it does not apply, it is up to each national law to determine the conditions under which the air carrier is called into question as well as the types of damage giving rise to compensation and the extent of the compensation that may be paid.
When the Warsaw Convention is applicable and in the cases provided for in Articles 17 to 19, "any action for liability, in any capacity whatsoever, may be brought only under the conditions and within the limits" that she plans.
It is therefore not possible to circumvent the rules of the Warsaw Convention by invoking other rules: it governs the dispute exclusively - this point has been the subject of important doctrinal and jurisprudential discussions - and the rights national authorities will only intervene on subjects which it does not deal with.
The presumption of responsibility laid down by Article 17 of the Warsaw Convention applies when an accident on board an aircraft was the cause of the damage for which compensation is sought. Thus, any damage, material or bodily, suffered by the passenger during the time of transport makes presume the fault of the carrier and engages his responsibility.
The Warsaw Convention lists three categories of cases for which the claimant can take legal action. One of these categories covers death, injury and bodily harm.
If the expressions "death" and "injury" do not call for particular observations, the situation is different from the concept of "bodily harm". The question is whether this expression, referred to in Article 17 of the Warsaw Convention, includes the trauma caused by the accident which caused feelings of anxiety and depression as well as other emotional and psychological, which would make it possible to compensate the moral prejudice suffered, on the basis of this text.
There is no international jurisdiction ensuring a uniform interpretation of the Warsaw Convention. It is therefore likely to have a different scope depending on the country.
Furthermore, the Warsaw Convention only regulates the origin of the damage, its causes (death or injury), it relies on national law for the determination of compensable damage and the extent of compensation.
Under Article 28 of the Warsaw Convention, the applicant has a choice, which allows "forum shopping". Thus, he can practically choose between three forums, on the condition that they are located "in the territory of one of the High Contracting Parties":
• the court at the main seat of the carrier's operation or its domicile;
• the court of the place where the carrier has an establishment by whose care the contract was concluded;
• the court of the place of destination.
Are therefore excluded the court of the place of call as well as the court of the place of occurrence of the accident in the absence of establishment of the carrier.
Thus, the claimant will in practice be led to choose the court which will agree to compensate a certain type of damage, or even the one which will grant him the highest compensation.
The issue of compensation for mental injury has given rise to a certain number of decisions in France and the United States, countries sharing the prominence in the area of air disputes.
I. Reparation for non-pecuniary damage in France
It should be noted that in matters of air carrier liability, the rules of the Warsaw Convention are applicable both in domestic law and in international transport within the meaning of the Warsaw Convention. In fact, the Civil Aviation Code (1) makes the provisions of the Warsaw Convention on the liability of air carriers applicable in French domestic law. The responsibility of the air carrier can only be sought under the conditions and limits provided for by the international treaty.
In France, airlines often tend to compensate victims automatically and themselves in the event of an air crash, without even waiting for them to go to court. Thus, the French courts have still not had to rule on the question of what is covered by the concept of "bodily injury", if it includes only the lesion which only causes physical harm or if it also includes an injury which caused psychological damage.
In a case (2) where the problem could have been posed - the victims of an act of air piracy requested compensation for their “physical, nervous, material and moral damage” - Compagnie Air France did not contest the application to the facts of the case for article 17 of the Warsaw Convention. A judgment (3) rendered by the Court of Cassation in 1982, without examining the issue head-on or holding the air carrier responsible, reports on the damage suffered by passengers victims of an air piracy operation "both physically only psychically. " In the present case, the air carrier had been exonerated from any liability for the physical and psychological damage suffered by passengers not because the psychological damage would not be compensable but because the carrier proved that it had taken all the necessary measures to avoid damage within the meaning of Article 20 of the Warsaw Convention.
En droit social, où le problème se pose dans les mêmes termes – la notion d’accident du travail « n’est légalement caractérisée que par une lésion corporelle » – un arrêt(4) de la Cour de cassation a assimilé un simple trouble psychique à une lésion corporelle. La Cour de cassation a récemment retenu cette qualification pour une dépression nerveuse apparue à la suite d’un entretien d’évaluation(5). La notion de lésion corporelle est donc entendue largement, puisqu’elle s’étend aux troubles psychiques. La même solution pourrait être étendue à l’interprétation de l’article 17 de la Convention de Varsovie.
The Warsaw Convention relies on national law for the determination of the types of reparable damage. In French law, the damage is repairable, on the basis of article 1382 of the civil code which applies as well to moral damage as to material damage (6), since it is personal, direct and certain ( 7).
Thus, when these three elements are met, the victim can claim compensation for any attack on physical integrity, for the pain he experienced in his flesh, physical or moral.
Jurisprudence, while subscribing to a dualist conception of pretium doloris, a concept which covers suffering suffered physical or moral, excludes during the lifetime of the victim the existence of moral prejudice which is thus based on the legal definition of pretium doloris.
Apart from the extreme hypothesis of victims contaminated by the AIDS virus, there does not seem to be an example of compensation for moral damage distinct from that of moral suffering which is part of the composition of pretium doloris.
Indeed, it is generally accepted that personal bodily injury covers pretium doloris ("suffering endured"), aesthetic damage, pleasure of pleasure, sexual damage, and juvenile damage, and these items seem to cover exhaustively all the consequences on a moral and subjective level of the damage and the after-effects suffered and endured. Consequently, it seems difficult today to identify a radically new concept which would repair an aspect of non-pecuniary damage distinctly different from those which the above-mentioned posts repair.
La cour de cassation a récemment cassé un arrêt de la cour d’appel d’Aix-en-Provence qui avait accueilli la demande d’une victime concernant un préjudice moral distinct du pretium doloris pour la conscience qu’avait cette victime de la gravité d’atteintes irréversibles et a rappelé que l’indemnisation du prix de la douleur réparait tant les souffrances physiques que les souffrances morales et qu’en indemnisant un préjudice moral distinct, les juges du fond avaient accordé une réparation excédant le montant du préjudice(8). La Cour de cassation avait déjà affirmé auparavant que « par l’indemnisation du prix de la douleur, sont réparées, non seulement les souffrances physiques, mais aussi les souffrances morales »(9).
However, even if the courts are reluctant to admit the existence of separate non-pecuniary damage, it is only to the extent that they consider that this type of damage is compensated for by the price of pain. Consequently, the psychological damage suffered following an accident which occurred during an air transport operation governed by the Warsaw Convention is undoubtedly repairable and repaired.
II. Reparation for non-pecuniary damage in the United States
A. Reparation for purely moral damage
The interpretation of the term "bodily injury" or "bodily injury" in the English translation has been debated in numerous federal and state judgments.
The American jurisprudence retains a restrictive conception of the concept "bodily injury" referred to in article 17 of the Warsaw Convention since it considers that this concept does not include mental injury. This position was confirmed in a decision of the United States Supreme Court, Eastern Airlines v. Floyd (10), April 17, 1991.
By this judgment, the Supreme Court reversed the judgment of the Federal Court of Appeal of the 11th circuit which considered that article 17 of the Warsaw Convention authorizes the repair of purely mental disorders in the absence of physical damage. The Court of Appeal's analysis had been found convincing and followed by other jurisdictions, including the Florida State Supreme Court (11), in a case involving the same accident, and the Colorado District Court (12).
However, in the current state of the texts, the position of the American Supreme Court is well established: article 17 of the Warsaw Convention does not authorize compensation for purely mental damage.
B. Compensation for non-pecuniary damage accompanying bodily injury
The jurisprudence of the Supreme Court which excludes compensation for mental injury in the absence of any bodily injury has not ruled on whether the Warsaw Convention allows compensation for mental injury accompanying bodily injury.
No American court seems to have found that the Warsaw Convention in all cases excluded compensation for non-pecuniary damage. In Jack v. Trans World Airlines, Inc. (13), the court rejected this approach on the grounds that it excessively restricts the rights of passengers.
On the contrary, the majority current, which is mainly based on this case law considers that mental damage can be repaired to the extent that such damage is caused by the damage to the physical integrity suffered.
In Jack v. Trans World Airlines, Inc., the court assessed the various possible solutions for compensation for non-pecuniary damage in the context of the application of the Warsaw Convention, these solutions ranging from the absence of any compensation for mental injury to compensation for mental suffering only "arising" from bodily harm, and concluded that the latter approach was the most appropriate.
Some courts have awarded full compensation for non-pecuniary damage on the sole condition that there is bodily injury of any kind, and even in the absence of any link between the two. Thus, in Chendrimada v. Air-India (14), the court refused to reject a request made by the complainant to obtain compensation for the psychological damage he suffered on the ground that he also alleged bodily harm including nausea and cramps.
However, most courts do not subscribe to this solution and consider that non-pecuniary damage must, to be compensated, result from bodily injury caused by the accident, which is in accordance with the position adopted by the Supreme Court of the United States. United in Eastern Airlines v. Floyd, and allows victims to be fully compensated, within the limits established by the Warsaw Convention. Indeed, if the psychological damage results from, or is caused by the bodily injury, it will not be fully repaired if the moral aspect of the damage suffered is not authorized.
It therefore seems necessary to distinguish the mental damage resulting from the bodily injury suffered during the accident from the psychological damage caused directly by the occurrence of the accident, only the first being reparable.
The question also arose as to whether the physical manifestations following the psychological disorder suffered could be remedied on the basis of the Warsaw Convention. Several jurisdictions have refused to make reparations for such damages. Indeed, Eastern Airlines v. Floyd makes a clear distinction between mental and bodily harm. If we accept the granting of compensation for the physical manifestations of the moral prejudice suffered, this distinction can no longer be made.
Thus, the Court of Appeal held that the Warsaw Convention authorizes compensation for mental damage insofar as it is caused by bodily injury suffered during the accident (15). But it also considered that physical manifestations of mental disorders such as weight loss or insomnia do not give rise to compensation on the basis of the said convention.
The facts of the case were as follows: Miss Anna Lloyd, a United States national, was the victim of a plane crash of the airline American Airlines, which occurred in 1999 in which 11 people died.
The accident occurred on the runway at Litlle Rock Airport in Arkansas. The survivor sued American Airlines for damages she suffered. In the case of international transport, the Warsaw Convention was applicable in this case.
During the accident, the victim's leg was punctured and scraped by bolts from an airplane seat.
She also suffered trauma to the quadriceps from other seats that fell on her lap. She was therefore treated for these various injuries and for inhaling smoke, and left the hospital the same day of the accident. The Court of Appeal in the present case agreed to compensate for the psychological damage suffered by the victim - post-traumatic stress, depression - in relation to his physical damage. Thus, in the present case, Miss Lloyd obtained the sum of $ 1.5 million for physical and mental damage - otherwise called "pain and suffering" in the United States - which she suffered, and which are substantially close of those suffered by the Algerian victim of the disaster near Tunis mentioned above.
African courts would be well advised to take into account the analysis made by the courts of the States which are most often brought to hear claims for compensation and which benefit from a wider experience and efficient assessment tools ( psychiatric expert reports documentation…).
(1) Article L.321-3 and following
(2) TGI of Paris, May 11, 1984
(3) Civ. 1, February 16, 1982, Bull. Civ. 1982, I, n ° 73, p. 63
(4) Cass. soc. January 27, 1961, Bull. Civ. 1961, IV, n ° 134
(5) Civ. 2, July 1, 2003, n ° 0240.576 FS-P, CPAM de Dordogne c / Ratinaud et a.
(6) Cass. Civ. February 13, 1923
(7) Civ. May 2, 23, 1977
(8) Civ. December 2, 9, 2004, appeal number: 03-15962
(9) Civ. January 2, 5, 1994, appeal number: 92-12185
(10) Eastern Airlines v. Floyd, April 17, 1991, 499 US 530
(11) Eastern Airlines v. King, February 15, 1990, 22 Avi. 17.816
(12) Morgan v. United Air Lines, November 6, 1990, 23 Avi. 17.438
(13) Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 665 North District California, 1994
(14) Chendrimada c. Air-India, 802 F. Supp. 1089, 1092-93 South District New York, 1992
(15) Lloyd v. American Airlines Inc., 291F 3d 503, 8th circuit 2002