INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW 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 first case dealt with the scalding of the plaintiff by an overturned coffee 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,23 the plaintiff claimed an injury due to a ‘bumpy’ landing at St. Gallen/Altenrhein Airport. The vertical load recorded by the flight recorder was still within the normal operating range and below the aircraft manufacturer’s specifications for maximum load. The essential question here was whether the qualification of the subjectively perceived ‘bumpy’ landing as an ‘unforeseen event’ should be based on the perspective of the affected passenger or an objective exceeding of specified 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 coffee 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,25 AG Nichoals 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 differs from that of 21 OGH references for preliminary ruling of 26.06.2018, 2 Ob 79/18h, and of 30.01.2020, 2 Ob 138/20m. 22 CJEU, judgement of 19.12.2019 in case C-532/18 – Niki Luftfahrt. 23 CJEU, judgement of 12.05.2021 in case C-70/20 – Altenrhein Luftfahrt. 24 Ibid., margin 33. 25 AG CJEU, opinion of 20.01.2022 in case C-589/20 – JR v. Austrian Airlines.
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