An air passenger's unfortunate fall down the stairs and an ‘accidental’ decision of the CJEU by Michael Wukoschitz PRE-PRINT of International Journal of Tourism, Travel and Hospitality Law (IJTTHL) An air passenger's unfortunate fall down the stairs and an ‘accidental’ decision of the CJEU Michael Wukoschitz Austria, President Emeritus of IFTAA International Journal of Tourism, Travel and Hospitality Law PRE-PRINT

An air passenger's unfortunate fall down the stairs and an ‘accidental’ decision of the CJEU Michael Wukoschitz, Austria The Montreal Convention (MC) provides for strict liability (up to the liability limit of 1 Art 21(1)) of the carrier for damage sustained in case of death or bodily injury of a passenger if that death or injury was caused by an accident on board the aircraft or in the course of embarking or disembarking. As in the Warsaw Convention (WC), 2 3 the term ‘accident’, which is central to liability, is not defned in the MC, which is why case law and literature have dealt extensively with this term. Recently, the interpretation of this term in connection with the fall of a passenger on a mobile passenger staircase when disembarking from the aircraft was once again referred to the CJEU by an Austrian Court. The result of the interpretation in its most recent 4 decision, according to which such a fall for ‘no ascertainable reason’ falls under the 5 term ‘accident’, breaks with the established case law of national courts in numerous Member States and thus holds considerable explosive power. 1. The case facts of JR v Austrian Airlines After the arrival of a fight operated by Austrian Airlines from Thessaloniki to Vienna on 30 May 2019, the passengers exited the aircraft via a (non-covered) mobile staircase. The plaintif's husband went frst with the hand luggage trolleys, the plaintif followed, carrying her handbag in her right hand and having her two-year-old son in her left arm. After the plaintif had observed her husband almost fall in the lower third of the stairs, she herself fell in the same place and broke her left forearm, with which she had hit the edge of the stairs. The court could not determine the reason for the fall: although the staircase was a little wet due to previous rain, it was neither slippery nor dirty. Neither the plaintiff nor her husband had used the handrail of the stairs. Convention for the Unifcation of Certain Rules for International Carriage by Air 1 [1999]. Article 17 para 1 MC. 2 Convention for the Unifcation of Certain Rules relating to International Carriage by 3 Air [1929]. LG Korneuburg (Regional Court Korneuburg) 15.09.2020, 22 R 122/20a. 4 CJEU, judgement of 02.06.2022 in case C-598/20 – JR v Austrian Airlines. 5

2. The concept of ‘accident’ in Warsaw Convention and Montreal Convention jurisprudence The US Supreme Court decision in Air France v Saks is widely regarded as 6 the leading decision on the defnition of an ‘accident’ for the purposes of the Warsaw Convention. According to that judgement, an ‘accident’ means an unusual or unexpected event that is external to the passenger and (at least as part of a chain of causes) causes the injury or death. In contrast, an injury resulting from the 7 passenger's own internal reaction to the usual, normal and expected operation of the aircraft is therefore not based on an ‘accident’. To qualify as an ‘accident’, an event must therefore • be unexpected or unusual • be external to the passenger; and • have led to the passenger's injury or death, at least as part of a chain of causes. This defnition has been widely followed by courts in other countries, such as the German Federal Court (BGH) and the Austrian Supreme Court (OGH), who have held that ‘accident” means • ‘any sudden event resulting from an external cause which kills or injures the traveller’; respectively 8 • ‘a sudden event based on an external cause, determined in time and place, as a result of which the passenger is killed or injured’; 9 The French Court of Cassation also requires ‘some event outside the passenger's person’ for an accident to occur. 10 All these interpretations have in common the requirement of an external event, which must be proven by the injured party as a prerequisite for a 11 claim. Likewise, the relevant doctrine requires that the cause of the injury or 12 US Supreme Court 04.03.1985, Air France v Saks, 470 U.S. 392 [1985]. 6 ‘An injured passenger is only required to prove that some link in the chain of causes 7 was an unusual or unexpected event external to the passenger’. German Federal Court (BGH), judgement of 21.11.2017, X ZR 30/15. 8 Austrian Supreme Court (OGH), judgement of 30.01.2020, 2 Ob 6/20a. 9 French Cour de Cassation, judgement of 29.11.1989, Sanchez c Air France (RFDA 10 1989 539, 540): „un quelconque événement extérieur à sa personne“. OGH, reference for preliminary ruling of 30.01.2020, 2 Ob 138/19m 11 Reuschle MÜ2 Art 17 Rn 28. 12

death must have arisen external to the person concerned. It was regarded 13 as clear that the ‘event’ external to the passenger cannot be the passenger's slip or trip itself. 14 3. Fall incidents in Warsaw Convention and Montreal Convention jurisprudence As expected, the case law on the WC and MC has had to deal with various fall incidents on several occasions, for which the following rulings can be cited as examples: In MacDonald v. Air Canada, the US Court of Appeal for the 1st Circuit had 15 to decide on a fall of a passenger at the baggage claim area in the airport building. The plaintif was standing at a pillar near the baggage carousel while her daughter was taking care of the bags. When the daughter turned around to receive the next piece of luggage, the plaintif fell for an undeterminable reason and injured her face, wrists and knee. The court saw no basis for qualifying this as an accident in the meaning of the Warsaw Convention because there was no ascertainable external impact. However, it also denied claims under the Warsaw Convention because the baggage claim was no longer part of the disembarkation process and the presence there therefore did not fall within the liability period of the Warsaw Convention. Barclay v. British Airways was based on the fndings that the plaintif had 16 slipped and fallen on a plastic strip covering the seat rails in the aisle between the rows of seats, during a fight from Phoenix, Arizona to London Heathrow and had been injured as a result. On the one hand, it would undoubtedly qualify as an accident if a fight attendant lost his balance and therefore spilled hot cofee on a passenger, just as it would undoubtedly not qualify as an accident if a passenger sufered a heart attack. If a passenger slips on the plane, he also loses his balance, but this does not say anything about whether the cause was due to the condition of the plane or the passenger's own physical condition. Since the plastic rail involved complied with all regulations, was in proper condition and was not unusual, there was no accident within the meaning of the Montreal Convention, because such an See Schmid in Giemulla/Schmid MÜ Art 17 Rn 46; Reuschle ibid. Rn 13; Jahnke, 13 Haftung bei Unfällen im internationalen Luftverkehr, 183 u. 226; Grant/Mason/Bunce Holiday Law6 13-008. Saggerson on Travel Law and Litigation7 [2022], p. 431 (10.51). 14 US Court of Appeals for the 1st Circuit 25.03.1971, MacDonald v. Air Canada, 439 15 F.2d 1402 [1st Cir. 1971]. Court of Appeal for England and Wales (Civil Divison) 18.12.2008, Barclay v. 16 British Airways, [2008] EWCA Civ 1419.

accident required an external cause. Slipping after contact with a plastic strip was not sufcient for this. To qualify any fall due to contact with an existing, properly installed and functioning piece of aircraft equipment as an ‘accident’ would violate the balance of interests intended by the Montreal Convention. In 2010, the Austrian Supreme Court dealt with a staircase fall of an airline passenger: According to the fndings of the court of frst instance, the 17 plaintif, as a preferred passenger, had left the aircraft before all other passengers via a fold-out staircase, which had a handrail on the right and left. However, the plaintif could not use this handrail because she was holding a piece of luggage in each hand. She was wearing high-heeled shoes with a heel height of 8 to 10 cm. When she reached the second step, she fell forward and hit her head on the runway of the tarmac. The exact reason for the fall could not be determined. At the time of the fall, there was no passenger directly behind her; after the fall, one of the plaintif's shoes remained on the stairs. The Supreme Court upheld the decisions of the lower courts, which had denied the existence of an accident, and dismissed the plaintif's appeal for lack of a substantial question of law. The ruling of the German Federal Court of 21.11.2017 as quoted above 18 dealt with the fall of a passenger due to a wet spot caused by condensation in the boarding bridge used for boarding and a patella fracture caused by this fall. The Federal Court assumed an injury due to an accident as a sudden event based on an external infuence. In Labbadia v. Alitailia, the plaintif had been using the passenger stairs at 19 the rear exit of the aircraft when it was snowing and - before he could hold on to the handrail - slipped on the stairs, which were slippery because of the snow, and fell headfrst. Again, the court examined whether there was an unusual or unexpected external event. While wintry weather with snowfall was not unusual or unexpected even in Milan, the plaintif should have expected a snow-free, covered passenger staircase. The use of an uncovered staircase was therefore to be regarded as an unusual, external event that had caused the injury. The court could not fnd contributory negligence because the plaintif had not immediately held on to the handrail. The most recent decision on a passenger falling down a staircase, prior to the CJEU ruling in JR v Austrian Airlines, probably was Moore v. British Airways. 20 OGH decision of 01.06.2010, 1 Ob 11/10i. 17 BGH judgement of 21.11.2017, X ZR 30/15. 18 High Court of Justice for England and Wales (Queen’s Bench Division) 31.07.2019, 19 Labbadia v. Alitalia, [2019] EWHC 2103. US Court of Appeals for the 1st Circuit 29.04.2022, Moore v. British Airways, No. 20 21-1037.

Like in the CJEU case, the staircase was neither slippery nor dirty, but its last step (i.e. the distance to the ground) was about twice as high as all the preceding steps and signifcantly higher than required by relevant, albeit nonbinding, standards, which is why the plaintif lost her balance and fell. The trial court dismissed the claim on summary judgment because the plaintif had ofered no evidence that such a design of the staircase was unusual or that the staircase difered in that respect from commonly used passenger stairs. The Court of Appeal pointed out that for an accident to occur, there had to be an unexpected or unusual event afecting the passenger from the outside, whereas an injury attributable to the passenger's own reaction to the ordinary, normal and expectable operation of an aircraft could not be considered to have been caused by an accident. Whether an event qualifed as ‘unexpected’ had to be assessed from the objective point of view of an averagely experienced, reasonable passenger. As it could not be ruled out that a reasonable jury would reach this conclusion, because non-binding standards could also be decisive for the expectations of an average passenger, the dismissal of the claim ordered by the court of frst instance was set aside. In all the cases referred to, there was either an external circumstance or - where such external circumstance could not be established - an accident was denied as a prerequisite for a claim under the Warsaw or Montreal Convention. 4. The CJEU's previous case law and the GA's opinion in the case JR v. Austrian Airlines The CJEU has already had to deal with the concept of ‘accident” in the MC on two occasions, each time on the basis of a referral from the Austrian Supreme Court. 21 The frst case dealt with the scalding of the plaintif by an overturned cofee mug, and the question at issue was whether liability under Art 17 was limited to accidents in which a typical aviation risk had materialised. The CJEU denied such an additional requirement: the usual meaning of the term ‘accident’ was that of an ‘unforeseen, harmful and involuntary event’. 22 In the second case, the plaintif claimed an injury due to a ‘bumpy’ landing 23 at St. Gallen/Altenrhein Airport. The vertical load recorded by the fight OGH references for preliminary ruling of 26.06.2018, 2 Ob 79/18h, and of 21 30.01.2020, 2 Ob 138/20m. CJEU, judgement of 19.12.2019 in case C-532/18 – Niki Luftfahrt. 22 CJEU, judgement of 12.05.2021 in case C-70/20 – Altenrhein Luftfahrt. 23

recorder was still within the normal operating range and below the aircraft manufacturer's specifcations for maximum load. The essential question here was whether the qualifcation of the subjectively perceived ‘bumpy’ landing as an ‘unforeseen event’ should be based on the perspective of the afected passenger or an objective exceeding of specifed limits (which had not occurred). The CJEU opted for the second solution and, referring to the Niki Luftfahrt judgment cited above, reiterated that the term ‘accident’ denotes an unforeseen, harmful and involuntary event. 24 In both cases, the injuries were undoubtedly caused by an external event - the tipping over of the cofee cup and the (relatively) ‘bumpy’ landing on the runway - so that the issue of whether only an external event can be considered an ‘accident’ within the meaning of Article 17 of the Montreal Convention was not relevant to the decision. In his opinion delivered in the case JR v. Austrian Airlines, AG Nichoals 25 Emiliou referred in detail to the international case law on the concept of accident in the Warsaw and Montreal Convention, including some of the decisions quoted above and the judgment of the CJEU in the Niki Luftfahrt case. In his analysis, he correctly concluded that the interpretation of the term ‘accident’ chosen by the CJEU in the Niki Luftfahrt ruling difers from that of the US Supreme Court in the Air France/Saks case essentially in that the criterion of an event external to the sphere of the passenger is missing in the former. 26 However, AG Emiliou assumed that this was only an unintentional omission by the Court of Justice, especially since it was obvious that a passenger could not assert a claim against the air carrier if he fell for a reason within his own sphere (such as a stroke) and that there was therefore a good reason for the criterion of an event or occurrence external to the passenger's sphere. Even 27 if the term ‘accident’ was initially based on its ordinary meaning, it remained an autonomous term that served the purpose of the Montreal Convention to protect consumers' interests, but at the same time to provide a ‘fair balance’. 28 His recommendation to the Court of Justice was therefore to interpret Art 17(1) of the Convention as meaning that the term ‘accident’ covers a case in Ibid., margin 33. 24 AG CJEU, opinion of 20.01.2022 in case C-589/20 – JR v. Austrian Airlines. 25 Ibid., margin 35. 26 Ibid., margin 52. 27 Ibid., margin 53. 28

which a passenger falls while disembarking on the boarding stairs, provided that the fall was triggered by some unexpected or unusual factor that is external to the passenger. 29 5. The CJEU judgment in the case JR v. Austrian Airlines In its very succinctly reasoned judgment of 02.06.2022, the CJEU refers to its interpretation of the term ‘accident’, already used in the Niki Luftfahrt judgment, as an ‘unforeseen, harmful and involuntary event’ that does not require a connection with an aviation-specifc risk or the operation or movement of the aircraft. This interpretation was in line with the objectives 30 of the Convention to protect the interests of consumers and to provide adequate compensation in accordance with the principle of ful l compensation, while maintaining a fair balance of interests. Accordingly, 31 Article 17(1) of the Montreal Convention had to be interpreted as meaning that a situation in which, for no ascertainable reason, a passenger falls on a mobile stairway set up for the disembarkation of passengers of an aircraft and injures himself or herself constitutes an ‘accident’, within the meaning of that provision, including where the air carrier concerned has not failed to fulfl its diligence and safety obligations in that regard. Although one can agree with the CJEU that a breach of the air carrier's duty of care is not relevant because liability does not depend on any misconduct 32 or negligence on the part of the air carrier, but it is sufcient if the accident occurs on board the aircraft or during boarding or disembarking - but it 33 does not follow from this in itself that a fall ‘for no ascertainable reason’ would also have to be subsumed under the term ‘accident’, as the CJEU does and thus ignores the restriction proposed by the AG. 6. Criticism There is no comprehensible reasoning in the CJEU ruling as to why, contrary to established international case law, the CJEU does not apply the criterion of an external event (or, in the words of the AG, an event ‘triggered by some Ibid., margin 66 and 84. 29 CJEU, judgement of 02.06.2022 in case C-589/20 – JR v. Austrian Airlines, margin 30 20. Ibid., margin 21. 31 Ibid., margin 22. 32 Ibid., margin 23. 33

unexpected or unusual factor that is external to the passenger’) when interpreting the concept of an accident. The CJEU does not even discuss the convincing arguments of the AG, but is content with a reference to its own judgment Niki Luftfahrt and the interpretation of the concept of accident advocated there - where, however, (as already noted) the ‘externality criterion’ did not play a role because the 34 injury there was undoubtedly caused by an external event. However, this is completely diferent in the case of a fall on a passenger staircase ‘for no ascertainable reason’, because such a fall can have a multitude of causes that lie solely in the passenger himself, such as in particular neurological causes, cardiovascular causes, orthopaedic causes, metabolic disorders, and so on. If the specifc reason for the fall remains not ascertainable, such intrinsic causes can no more be excluded than extrinsic causes. However, the wording of Art 17 para 1 MC indicates that the burden of proof for a damage-causing 35 accident on board an aircraft or during boarding or disembarking rests with the passenger, which has also been completely undisputed in case law up to now. A ‘non-ascertainable cause’ would therefore have to weigh against the passenger, who would have to prove it, but the CJEU seems to relieve him of his burden of proof by considering the fact of the fall itself (regardless of its non-ascertainable reason) as an ‘accident’. Based on this interpretation, passengers who have sufered injuries from falling on board or during embarking or disembarking would obviously be better advised not to claim a specifc reason for the fall in the frst place: if this remains non-ascertainable, the air carrier will be liable in any case (following the view of the CJEU), even if the actual reason may have been of an intrinsic nature, but could not be ascertained. To regard this as ‘in accordance’ with the goal of a ‘fair balance of interests’ seems rather bold. The High Court for England and Wales in the case of Arthern v Ryanair 36 recently upheld a frst instance judgement according to which, on an icy day when the ground outside was wet and the aircraft had to be de-iced, a reasonable passenger would not fnd the presence of slippery fuid on the foor next to the aircraft’s entrance to be unusual or unexpected. If the passenger slipped, fell and injured himself under such conditions he can, therefore, not refer to an ‘accident’ in the meaning of the MC. AG CJEU, opinion of 20.01.2022 in case C-589/20 – JR v. Austrian Airlines, 34 margin 53. ‘… upon condition only …‘. 35 High Court of Justice, King’s Bench Division, 16.01.2023, Athern v. Ryanair, [2023] 36 EWHC 46 (KB).

If we follow the interpretation of the CJEU in case C-589/20 pursuant to which even a passenger’s fall for no ascertainable reason constitutes an accident – how could a judge then determinate whether that reason was unusual or unexpected? The problem, however, may even go far beyond events of falls: if one completely disregards the criterion of an external event and only requires that the harmful event must have been ‘unforeseen and unintentional’, completely diferent health-impairing events occurring within the time frame of liability of the MC, such as thromboses or hearing damage due to changes in air pressure, could also have to be re-evaluated, which would turn decades of international case law 'upside down'. Apart from the concept of accident in the MC, it generally appears problematic that the CJEU, due to its exclusive competence to interpret Union Law, interprets international conventions such as the MC at its own 37 discretion, without itself having to justify serious deviations from the existing established international case law. This entails the risk of fragmentation of international law, because on the one hand the courts of the EU Member States are bound by the interpretation of the CJEU, but on the other hand the courts in the other contracting states to the Convention are not prevented from adhering to their previous established case law - which they will probably do in particular if the CJEU, as in the case at hand, does not even remotely provide a comprehensible justifcation for its divergent interpretation. In this way, the CJEU undermines the aim of these conventions, which is to create globally uniform regulations and thus international legal certainty in their area of application. It is therefore not surprising that AG Emiliou explicitly recommends to the CJEU in his recent opinion in another pending preliminary ruling on the concept of accident under the MC, that, ’since the Court is but one of many jurisdictions throughout the world that are competent to interpret the Montreal Convention, and since the uniform application of that convention in all States Parties is an aim to be pursued, it is appropriate for the Court to duly take into account, and give the required weight, to the decisions handed down by the courts of those States Parties’. 38 The CJEU in JR v. Austrian Airlines ruling thus appears to be a (potentially serious) 'accident' in the CJEU's jurisprudence. 39 Article 19 TEU. 37 AG CJEU, opinion of 12.01.2023 in case C-510/21 – DB v. Austrian Airlines, 38 margin 38. Meaning: ‘an unforeseen, harmful and involuntary event’ (CJEU, judgement of 39 19.12.2019 in case C-532/18 – Niki Luftfahrt).

Contact Estoril Higher Institute for Tourism and Hotel Studies IJTTHL Celebrating five years of the first publication Vincenzo Franceschelli, On Tourism Law | Quest for general principles, Alejandro Corral Sastre, A new Administrative Law for a new Tourism: now or never, Jonas Thyberg, The Package Travel Act and the Covid19 pandemic, Caterina del Federico, The use of artifcial intelligence in the travel and hospitality industry. Civil liability profles, "We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group's dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law.” • Vincenzo Franceschelli, The Lisbon Group and International Tourism Law Five years after the frst international publication (The New Package Travel Directive, October 2017) at the ESHTE | INATEL International Conference in October 2022, bringing together 50 speakers from 27 countries, a new project was announced: The International Journal of Tourism, Travel and Hospitality Law (IJTTHL). IJTTHL brings together several universities and is published both in print and online. The central part will be in English but will have an IberoAmerican chapter, and the texts are immediately available through Pre-Print. Monika Jurkova, Liability of online platforms in the tourism sector, https:// Francesco Torchia, Tourism enterprise and cultural heritage protection, as a legal instrument for valorization of the territory and of the person, https://,-as-a-legal-for-valorization-of-the-Territory-and-ofthe-Person-by-Francesco-Torchia/ Valérie Augros, Holiday lettings in France: tips and tricks, Holidays-lettings-in-France---Tips-and-tricks-by-V.-Augros/ Sarah Prager, Competition law: online travel agents and airlines, https://,--Competition-Law---OTAs-and-airlines/ Andrej Micovic, Legal Tech and Online Dispute Resolution, Microsoft-Word---A.-Micovic---Legal-Tech-and-ODR-in-Tourism./ Pilar Juana Garcia Saura, The inspection of tourist accommodation by Public Administrations: problems with the use of the robot inspector (web spider) and the responsibility of collaborative platforms, Michael Wukoschitz, A Wicked Deed’s Curse – Will X v Kuoni change the Organiser’s Liability?,,---M.-Wukoschitz/ Bertold Bär-Bouyssiere, Sustainability and Article 101(1) TFEU, Exploring (almost) virgin territory, Tatjana Josipovic, Modernisation of information requirements for consumers on online tourism services market, Matija Damjan, The new online platform rules and the accommodation booking services, Ilie Dumitru, EU legislation and contractual relationship between the travel package organizer and the air carrier in case of charter fights. Liability for cancelled and delayed charter fights, João Almeida Vidal, Arbitration and tourism: a feld to explore, https://