Jurisdiction against carriers: court upholds supremacy of Warsaw Convention - International Law Office

Facts
Decisions
Comment

In X v Gulf Air (November 12 2009) the First Civil Chamber of the Court of Cassation reiterated that the jurisdictional provisions of the Warsaw Convention 1929 (and implicitly, those of the Montreal Convention) relating to actions for damages against a carrier prevail over any other grounds of jurisdiction.

Facts

The case related to an air crash which occurred on August 23 2000. An Airbus A320, built by GIE Airbus Industrie (France), registered in Oman and operated by Gulf Air (registered in Bahrain), on a flight from Cairo to Bahrain, crashed into the sea before landing. There were no survivors.

Several hundred claimants (the families of the victims) commenced proceedings before the French courts against both GIE and Gulf Air, seeking damages and interlocutory relief (in particular, payment of damages on account).

Gulf Air challenged the jurisdiction of the French courts pursuant to Article 28 of the Warsaw Convention. This provision lists the jurisdictions, at the option of the plaintiff, before which "an action for damages must be brought". Such action against Gulf Air should thus have been brought either in Bahrain (as the place where the carrier was ordinarily resident or had its principal place of business, or the place of destination), or possibly Egypt (where the carrier may have had an establishment through which the contract of carriage had been made). Therefore, France corresponded to none of the jurisdictions exhaustively listed in Article 28.

Nevertheless, the claimants maintained their action against Gulf Air before the French courts, essentially on the grounds that:

• the latter had jurisdiction over GIE (domiciled in Toulouse);
• the claims against the aircraft manufacturer and the carrier were necessarily related; and
• it was therefore necessary for these claims to be heard together in order to avoid the risk of irreconcilable judgments.

Decisions

The main chronology of the decisions in this action was as follows:

• July 23 2002 – the Toulouse First Civil Court accepted that the French courts had jurisdiction over Gulf Air.
• June 3 2003 – the Toulouse Court of Appeal confirmed this decision.
• July 11 2006 – the Court of Cassation annulled the judgment of the Toulouse Court of Appeal on the grounds that Article 28.1 of the Warsaw Convention precluded the claimants from pursuing Gulf Air in France. This annulment restored the parties to the position that they were in following the initial judgment of the Toulouse first instance court. The matter was thus remitted to the Orleans Court of Appeal to consider Gulf Air's appeal afresh.
• December 14 2007 – the Orleans Court of Appeal overturned the first decision on the grounds that the French courts had no international jurisdiction over Gulf Air in this matter. The appeal court also held, in response to a new argument raised by the claimants, that there were no grounds to justify the submission of any question to the European Court of Justice (ECJ).

The claimants brought a further appeal before the Court of Cassation against the decision of the Orleans Court of Appeal, and specifically requested that the Court of Cassation submit the question of principle to the ECJ. The appellants put forward two arguments.

First, the Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters (September 27 1968) should override the Warsaw Convention. The rules on related proceedings (Article 22) should apply irrespective of the parties' domicile. In order to avoid irreconcilable decisions, courts properly seised in relation to one defendant (in this case, Airbus) should also have jurisdiction over the second defendant (Gulf Air). Thus, the Orleans Court of Appeal was wrong and had misapplied the Brussels Convention, in particular:

• Article 2 – a defendant can be sued before the court where it is domiciled;
• Article 6.1 – a defendant can be used before the court where one of the other defendants is domiciled; and
• Article 22 – the second court seised in related proceedings should stay its proceedings in order to avoid irreconcilable judgments.

Second, where a contracting state is a party to an international convention which deals with jurisdiction in specific situations, the uniform rules of the Brussels Convention are excluded only in cases specifically covered by such special convention. Since Article 28 of the Warsaw Convention does not deal with the specific situation of multiple defendants, the Brussels Convention should prevail. Therefore, the appeal court was wrong to find that Article 28 necessarily excluded any other jurisdictions.

The Court of Cassation dismissed this final appeal without hesitation. Its findings in relation to the appellants' arguments were as follows.

First, only GIE was domiciled within a Brussels Convention contracting state. Therefore, Gulf Air could not be sued before the French courts on the basis of this convention. Only French domestic procedural rules in relation to co-defendants could form the basis for pursuing Gulf Air before the French courts. There was therefore no question as to the construction of a European convention capable of being submitted to the ECJ.

Second, the Orleans Court of Appeal was correct in finding that Article 28 of the Warsaw Convention provided for exclusive jurisdiction, which thus necessarily precluded the seisin of any courts other than those listed at Article 28.

Comment

The claimants adopted a creative approach in this matter in order to try to circumvent Article 28 of the Warsaw Convention. The idea of raising a potential conflict between two distinct international conventions and requesting that the ECJ be seised of this question was certainly imaginative, but objectively it was bound to fail.

The French courts have repeatedly upheld the exclusive nature of the rules of jurisdiction set out in Article 28 and, more recently, have also applied the equivalent provisions of the Montreal Convention.

Furthermore, the Court of Cassation was correct in finding that since Gulf Air was domiciled in Bahrain, the jurisdiction rules applicable to Gulf Air were not those of the Brussels Convention, and there could be no justification for the submission of any question of construction or application to the ECJ.

Indeed, the Court of Cassation could have gone further. Even if the carrier in this case had been domiciled within a Brussels Convention contracting state (or within a contracting state of the subsequent Lugano Convention or EU Regulation 44/2001, which partially superseded this), the position ought to have been the same.

The appellants in this case sought to argue that since the Warsaw Convention jurisdiction provisions at Article 28 do not specifically deal with the issue of related proceedings and the risk of irreconcilable judgments, the Brussels Convention provisions on related actions should prevail.

Nevertheless, on numerous occasions both the Court of Cassation and the ECJ have stressed that the provision relating to related actions (whether in the Brussels or Lugano Convention, or EU Regulation 44/2001) does not create a ground of jurisdiction as such; it merely provides a mechanism to avoid irreconcilable judgments where courts of several contracting states have been seised. Thus, it was arguably immaterial that Gulf Air was domiciled in Bahrain rather than in a European contracting state.

The Brussels and Lugano Conventions and EU Regulation 44/2001 all provide that they "shall not affect any conventions to which the member states are parties and which in relation to particular matters govern jurisdiction or the recognition or enforcement of judgments". The fact that the Court of Cassation has now reiterated that Article 28 of the Warsaw Convention provides for exclusive jurisdiction for actions against carriers should dispose of this point once and for all. The same should also logically apply to the equivalent provisions under the Montreal Convention.

For further information on this topic please contact Oliver Purcell at Holman Fenwick Willan LLP by telephone (+33 1 44 94 40 50), fax (+33 1 42 65 46 25) or email (omp@hfw.com).