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
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