With Decision 2,778 of 13 December 2019, the Supreme Court ruled on the scope of the Montreal Convention 1999, which establishes airline liability for:
- death or injury to passengers;
- flight delays; and
- damage or loss of baggage and cargo.
In particular, the court confirmed that the Montreal Convention applies to:
- the international carriage of persons, baggage or cargo performed by aircraft for reward; and
- gratuitous carriage performed by an air transport undertaking, as provided for by Article 1 of the convention.
Conversely, the court found that private air transport performed for courtesy reasons by non-commercial operators does not fall within the scope of the Montreal Convention.
The Supreme Court judgment came after a long-lasting legal proceeding started by the successors of a person who had died in an aircraft accident where the operator was a private entity (ie, not a licensed air carrier). The deceased's successors claimed compensation from the operator, which in turn called its insurer into the proceeding for indemnity purposes.
The first-instance decision recognised the carrier's liability and its indemnity rights towards the insurer. Subsequently, the second-instance court confirmed the previous decision and rejected the insurer's challenge, which was based on the two-year limitation period for damage compensation pursuant to Article 35 (Limitation of Actions) of the Montreal Convention, according to which:
The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
The insurer challenged the second-instance decision before the Supreme Court on the basis of three pleas in law. The second and most important plea regarded the infringement of Articles 29, 30 and 35 of the Montreal Convention, as implemented in Italy by Article 941 of the Navigation Code.
The insurer argued that the second-instance judge had wrongly considered that the two-year limitation period provided by the Montreal Convention did not apply to the disputed case (ie, gratuitous air transport performed by a non-commercial operator) and accordingly had not recognised the time bar of the successors' claim.
This plea was considered ungrounded by the Supreme Court, which pointed out that Article 1 of the convention is enforceable when there is a contractual obligation, for free or reward, between an air carrier and its passengers. In case of gratuitous carriage, the transport must be performed by an air carrier. In this way, the carriage can be considered a business matter. However, in the case at hand, the carriage constituted courtesy transport by a private operator and not a contractual obligation. Therefore, it did not fall within the scope of the Montreal Convention.
It can be concluded that for gratuitous carriage not performed by an air transport undertaking, rights to claim compensation for damages do not expire within the two-year limitation period established by Article 35 of the Montreal Convention. In other words, when the relationship between parties is not regulated by a contract, the general principle of neminem laedere (ie, general duty of care) applies. As a result, the ordinary time-bar rules for liability in tort apply.
