The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan.
On 8 July 2019, Italian Supreme Court (Corte di Cassazione) ruled on the jurisdiction of Italian courts over passengers’ claims for compensation against air carriers established in non-EU countries (order No 18257 of 2019).
D.M. and R.G., two Italian citizens residing in Italy, purchased tickets to fly from Copenhagen to Havana, and back. The flights were operated by the Russian airline Aeroflot. The tickets were purchased through the Aeroflot website.
The flight to Havana was first cancelled and only replaced with a longer flight the day after. On the return flight, the two passengers’ luggage was mishandled only to be delivered ten days later.
The two sued the Italian subsidiary of Aeroflot for damages before the Justice of Peace of Rome.
Aeroflot challenged the jurisdiction of Italian courts and asked the Supreme Court to give a ‘preliminary’ ruling on jurisdiction, as provided for in Article 41 of Italian code of civil procedure (this is a ruling on jurisdiction alone, which either party may request for as long as the case is not decided at first instance).
Specifically, Aeroflot submitted that the action had no connection with Italy, apart from the nationality and the residence of the plaintiffs. It stressed that the tickets had been purchased through the Moscow-based website of the company and that Italy was neither the country where the contract ought to take place nor the country where the alleged non-performance had occurred.
The legal framework
In its ruling, the Supreme Court began by pointing out that the matter came with the purview of the Montreal Convention of 1999 for the unification of certain rules for international carriage by air.
The Convention, to which Italy is a party, applies to all international carriage performed by aircraft for reward (Article 1(1)). A carriage is ‘international’ for the purposes of the Convention where, among other situations, the place of departure and the place of destination are situated in the territories of two States parties. The latter condition was met in the circumstances, given that the Convention is also in force for Cuba and Denmark.
Jurisdiction over passengers’ rights under the Montreal convention
The Montreal Convention deals with jurisdiction over passengers’ claims for damages in Article 33. Specifically, Article 33(1) provides that an action for damages may be brought, at the option of the plaintiff, before the courts of the following contracting States: the State of the carrier’s domicile, the State of the carrier’s principal place of business, the State where the carrier has a place of business through which the contract was made, or the State of the place of destination of the flight.
In the instant case, the Court noted, the question was whether the defendant, Aeroflot, could be regarded to have a ‘place of business’ in Italy, and whether such place could be considered to be the place of business through which the contracts between Aeroflot and the plaintiffs had been made.
The ‘place of business through which the contract was made’
The Court observed that, where tickets are purchased on-line, the place of business through which the contract was made must be identified regardless of the physical location of the agencies, subsidiaries or branches of the carrier concerned.
Air carriers, the Court remarked, present themselves on the web as commercial operators interacting with users based anywhere in the world. Neither the carrier’s nor the website users’ location or geographical origin are relevant to the transaction, since no physically identifiable intermediation occurs between the passenger and the carrier for the purposes of the purchase.
According to the Supreme Court, the online purchase of tickets challenge the traditional methods of localisation of a contract for jurisdictional purposes.
Against this background, the ‘place of business through which the contract has been made’, as referred to in Article 33(1) of the Montreal Convention, cannot be determined based on the location of the server used for completing the purchase. It would be unreasonable, the Court added, to burden the passenger with the task of assessing the location of the relevant server. Moreover, an inquiry to that effect would lead to uncertain results, and would hardly be consistent as such with the goals of predictability that the rules on jurisdiction, including Article 33(1) of the Montreal Convention, are expected to pursue.
Having stressed that the Montreal Convention must be given an autonomous interpretation, the Court observed that Article 33(1) should be read in light of other provisions in the Convention concerning jurisdiction. By this statement, if the understanding of the author of this post is correct, the Court meant to refer, in particular, to Article 33(2).
The latter provision applies, alongside Article 33(1), to actions for damages ‘resulting from the death or injury of a passenger’. It provides that those actions may also be brought before the courts of the State Party ‘in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement’.
While Article 33(2) was inapplicable as such to the circumstances of the case, the Supreme Court apparently relied on the latter provision to construe, consistent with the principles of the Convention, the expression ‘place of business through which the contract was made’ as used in Article 33(1), in particular as regards on-line purchases. The Court argued that in on-line purchases, that place should be understood to correspond to the place where the purchase order is made and the payment is likely to take place: in the Court’s view, that place should in fact be identified with the domicile of the passenger, a connecting factor that complies with the requirements of certainty and foreseeability.
In the Court’s view, one of the general goals underlying the Montreal Convention, as it arises from an overall analysis of the above provisions, is in fact to enhance the protect of the passenger, namely by facilitating access to justice. To corroborate its findings, the Court also referred to the rules of the Brussels I bis Regulation on contracts concluded by consumers, as an example of the kind of protection that jurisdictional rules may want to afford to weaker parties.
In light of all of the foregoing, the Supreme Court concluded that, in the event of tickets purchased online by the passenger himself, the expression ‘place … through which the contract has been made’ in Article 33(1) should be deemed to refer to the place where the passenger becomes aware of conclusion of the contract, that is, in fact, the domicile of the passenger himself. This interpretation, the Court finally contended, complies with the goal of giving adequate protection to the passenger as a weaker party, while ensuring predictability and protecting air carrier against forum shopping.