This post was written by Amy Held, LL.B., LL.M., LL.M., University of Vienna.
Judgment in Silverman v Ryanair DAC  EWHC 2955 (QB) (10 November 2021) was recently handed down in the Queen’s Bench Division of the English High Court of Justice. The issue for determination was a relatively simple one: whether English or Irish law applied to a claim made under the Montreal Convention. This, however, raised the broader issue of how the Montreal Convention interacts with the choice of law rules of the lex fori; in particular, on matters on which the Montreal Convention is silent. The case is also of significance for aviation practitioners because, in practical terms, it was a determination of whether an airline can disapply the choice of law provisions contained in its own Terms and Conditions.
This case concerned a personal injury allegedly sustained whilst embarking a flight from East Midlands Airport in England to the Berlin Schönefeld Airport, in Germany. It was common ground between the Claimant passenger and Defendant airline that the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’) applied to the claim.
Nor was it in issue before the court that Article 33 of the Montreal Convention effectively overrode the jurisdiction element of the dispute resolution clause contained in the Defendant’s Terms and Conditions of Carriage (‘the T&Cs’). Notwithstanding that Clause 2.4 of the T&Cs conferred exclusive jurisdiction on the courts of Ireland (as well as specifying Irish law for matters of interpretation and governing law), Article 33 of the Montreal Convention is a mandatory, self-contained scheme for jurisdiction conferring upon claimants a wide range of choice as to the forum in which to issue their claim. The English courts thereby had jurisdiction pursuant to the Claimant’s choice to issue in the place of his “principal and permanent residence.”
The issue on trial before the judge, Master McCloud (‘the Master’) was, however, the law applicable to quantum. Although Article 17 of the Montreal Convention provides for the question of whether liability is established, the type of damage in respect of which compensation may consequently be recovered is a matter on which the Montreal Convention is silent.
Accordingly, the overarching issue of principle was whether, on matters on which the Montreal Convention is silent, those matters are governed by: (i) the law chosen by the parties; (ii) the lex fori or (iii) the law identified by the forum’s own choice of law rules.
A further key issue was whether: (i) the existence of a contract of carriage between the parties meant the claim fell within the Rome I Regulation on the law applicable to contractual obligations (Rome I); or (ii) notwithstanding such contract, the claim fell within the Rome II Regulation on the law applicable to non-contractual obligations (Rome II).
Governing Law for Matters on which the Montreal Convention is Silent
The Master considered domestic, international, and CJEU decisions to conclude that silence in an international Convention on a particular matter cannot “sensibly be treated” as overriding the forum’s own choice of law rules. Rather, silence in the Convention must be treated as operating as a ‘pass through’, authorising the forum to apply the law that would govern in the absence of the Convention in question.
Furthermore, it does not make any difference if those choice of law rules apply by virtue of another international Convention: in the present case, the Montreal Convention did not override Rome I and Rome II, which were to be treated as the domestic choice of law rules of the English forum. Under the under the case law of the CJEU itself, the rules of jurisdiction contained in the Brussels regime are only disapplied in favour of the rules of jurisdiction contained in an international Convention where two conflict.
Accordingly, the question of quantum fell to be determined by the law identified by the choice of law rules of the English forum.
Rome I or Rome II? Does the Governing Law Clause Survive?
The Master held at  that, as a matter of the English choice of law rules, Rome II, not Rome I, applied to the claim. Notwithstanding that a contract of carriage had been entered into by the parties with clear choice of Irish law, the claim did not plead a case of breach of contract, not even one in which the Montreal Convention was incorporated. Rather, the Claimant pleaded a case of breach of the Montreal Convention itself. Given that the Montreal Convention does not require carriage by air to be pursuant to a contract, but encompasses gratuitous carriage, the Montreal Convention should be regarded as implementing its own system of law that encompasses both contractual matters and ‘classically tortious concepts’ such as strict liability for injury. The fact that Rome I provides for claims in arising from contracts of carriage did not mean that a claim under the Convention, framed non-contractually, should invariably be treated as though it were a contractual claim.
As such, the present Montreal Convention claim was most appropriately categorised as a “claim in respect of a non-contractual obligation arising out of a tort or delict in the form of causing injury to the claimant through negligence” within the scope of Rome II.
So, the Law Governing Quantum is…
Notwithstanding that, under Article 4(1) of Rome II, claims in tort/delict are generally governed the law of the country in which the damage occurs, the Master considered that the present claim had a ‘manifestly closer connection’ with the law of Ireland within the meaning of Article 4(3) of Rome II. Matters to which the Master gave particular emphasis was (i) a pre-existing relationship between the Claimant and Defendant in the form of the contract of carriage; the facts that such contract of carriage not only (ii) contained a clear choice of law clause; but (iii) selected as governing law the law of the place where the airline itself was domiciled.
Drawing upon academic literature, the Master accordingly concluded at  that, for issues of cognisable damage and quantum, English law, as the lex fori, identified Irish law as the governing law.
This was an unusual case in that the accident occurred in England, the loss was sustained in England, the claim was issued in England…and yet the Claimant sought to apply Irish law to govern the claim. Accordingly, it might be said that, perhaps even more unusually, the Claimant’s case succeeded.
However, it is submitted that the Master correctly applied the relevant legal provisions to reach the correct conclusion: although the accident and damage was sustained in England, the English courts were seised by chance as a matter of the Claimant’s choice under Article 33(2) of the Montreal Convention as the place of his residence. Had the Claimant been resident in another jurisdiction and issued there, the strength of the English nexus would have been greatly reduced. In these circumstances, the application of Irish law would appear rather less incongruous.
The case also raises the question of whether ‘contracts conquer all.’ Prima facie, the conclusion drawn by the Master that Irish law applied appears to lend support to the proposition that, in the EU, a governing law clause in a contract of carriage will ultimately prevail when assessing recoverable damages and quantum for bodily injury within the meaning of Article 17 and other matters on which the Montreal Convention is silent; it does not matter whether Rome I or Rome II applies, as the outcome is the same.
This, however, overlooks one key part of the Master’s reasoning: whether the ‘escape clause’ in Article 4(3) of Rome II applies falls to be determined on a case-by-case basis upon consideration of the issue of ‘manifest connection.’ It cannot be said, therefore, that a contract of carriage containing a choice of law clause will always, without more, displace the general rule under Article 4(1) of Rome II that torts/delicts are governed by the law of the place in which the damage is sustained.
On a practical level, the case is also a useful reminder that although claims brought under the Montreal Convention are not necessarily claims in contract, the Master did not rule out the possibility that a comparable claim could be brought as one of breach of contract. It appears that the matter ultimately turns on the way in which the claimant elects to plead his claim.
This is closely linked to the question of whether an airline can disapply the choice of law clause contained in its own T&Cs. Strictly speaking, the choice of law rule in the present case was not so much ‘disapplied’ as simply not having been engaged by the facts of the case. Characterisation of the claim as a tort/delict meant that the contractual provisions did not apply. On the other hand, had the claim been pleaded and characterised as one for breach of contract, it is highly likely that the governing law clause would have survived to apply.