Choix de la juridiction la plus efficace en matière d’accident aérien (Fr)

INTRODUCTION

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, while aviation has a
international vocation, which poses the problem of conflicts of laws as well as of all
air carrier liability matters.

The last air disaster of July 25, 2000, that of the Concorde, is an illustration
tragic 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 interest being that the amount of compensation may vary from country to country
the other.

The lawyers for the beneficiaries of the victims therefore wish to obtain sums
close to the damages obtained by accident victims 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
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. (The World 27
July 2000).

We can thus see that the consequences of the choice to found this or that competence is significant,
taking into account the financial stakes involved in compensating victims.

Conversely, for air accidents that 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
was on the Abidjan - Lagos - Nairobi link crashed shortly after takeoff from
Abidjan Airport), and the maximum amount offered by the airline is
20,000 $ of damages.

Talking about the liability regime for air transport naturally implies
to speak of the Warsaw Convention of October 12, 1929, and to recall its principles, both
with regard to the applicable rules of jurisdiction than with regard to the
responsibility for 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 Convention
Warsaw. The Warsaw Convention allows in its article 28 that the action in responsibility
be worn, at the request of the applicant, 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 the care of which the transport contract was established
- The Court of the place of destination

This action must be brought under penalty of forfeiture, within two years from
of arrival at destination, or of the day on which the aircraft should have arrived, or of the transport stop
(Article 29).

B. REGIME OF LIABILITY

The Warsaw Convention likewise lays down the principles of responsibility, namely that the
transporteur aérien est présumé responsable (article 17) du dommage survenu, “en cas de
death, injury or other bodily harm suffered by a traveler, when
the accident which caused damage occurred on board the aircraft, or during any
opération d’embarquement ou de débarquement”.

Therefore, to trigger the presumption of liability of the carrier, the victim or his
beneficiaries will simply have to prove that they suffered damage (following an accident),
and that it occurred on board the aircraft during boarding or
landing.

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 limit
higher 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 Convention
Warsaw, known as the "Hague Protocol" (entered into force August 1, 1963).

Likewise, the ceiling under the Warsaw Convention may be exceeded,
thus allowing the victim to obtain full reparation for his damage.

This faculty results from article 25 of the Warsaw Convention which specifies that if a fault
inexcusable (the inexcusable fault having been interpreted by the case law as a fault
objective) can be blamed on the carrier or his agents (acting in the exercise of
their functions), the limits of liability in 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 the
France which established the liability limit at 750,000 FF (article L 322-3 of the Code of
civil aviation), 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
from 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
Article 28 jurisdictions 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 operates directly or through
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 or from which
the carrier operates air transport services… ”

The main and permanent residence designating the single fixed and permanent place of stay of the
passenger at the time of the accident. The nationality of the passenger is not by the factor
decisive in this regard.

However, this fifth skill is optional and is only applicable under three
cumulative conditions of residence, operation and presence.

B. NEW LIABILITY PROVISIONS

The concept of liability for risk or objective was also introduced ("strict
liability ”), for accidents, within the meaning of article 17. Under the scheme adopted, the complainant is
sure to obtain, within the limit indicated, compensation for the damage he will have suffered, since the
carrier can not invoke heads of exemption except the fault of the victim (article
20).

If he wishes an additional repair, he will have to confront the transporter, who may
then, to prove the fact that the damage does not result from its negligence (article 21-2-a). Furthermore,
action for damages can only be brought under the conditions and within the limits of
liability under the Convention.

These various provisions reaffirm the principle of the exclusivity of the Convention of
Warsaw for all repair requests associated with the Transport Contract, a
times when the courts sometimes tend to want to apply national law.

We are therefore witnessing an evolution of litigation in the area of air law, litigation which
deals on an international basis. At the same time, there is a unification of the law of
transport, materialized by the birth of a new agreement, the
Montreal, intended to provide solutions to this same dispute.