The applicant sought legal aid for an intended action against the defendant, a travel company. Among other things, she sought compensation under the Montreal Convention (MC) for an injury she had allegedly suffered during an international flight from Munich to Denpasar, Indonesia via Singapore.
She claimed that a flight attendant had injured her knee during the flight with a service cart.
The Hanover Regional Court rejected the application for legal aid. It found that a claim for damages under Article 17 of the MC did not exist because this would require the damage to result from a typical aviation hazard.
The applicant appealed.
The appeal led to the annulment of the decision and the remittal of the dispute to the Regional Court of Hanover.
The Celle Higher Regional Court found that the Hanover Regional Court had wrongly considered that a typical aviation danger was a prerequisite for the application of Article 17 of the MC. It had then denied the existence of such a danger.
The Hanover Regional Court overlooked the fact that it is disputed whether Article 17 of the MC requires a specific, internal connection between the cause of the damage and the operation of the aircraft. The facts described by the applicant met the narrow requirements of the realisation of a typical aviation hazard. The purpose of Article 17 of the MC is to protect passengers against specific dangers to their life or physical integrity that may result from the technical equipment and other factual circumstances of air transportation.
A special feature of air travel is that food and beverages must be moved by the cabin crew using carts designed to fit the narrow aisles between rows of seats. The distances between the individual rows of seats are so short that passengers sitting closest to the aisle often like to stick their legs out into the aisle for relief. If a service cart is pushed through the aisle at this moment, a collision can occur, as happened in the present case.
It remains to be seen whether the Regional Court of Hanover will affirm in the main proceedings all the damages allegedly suffered by the applicant as a result of the collision or whether these will not instead be significantly reduced or excluded due to any contributory negligence on the part of the applicant.
This is because the applicant had to expect that cabin personnel would travel through the aisle several times during the flight with food, drinks and other duty-free products. She should therefore not have trusted that she could put her leg in the aisle without consequence.
The relevant standard for this is Article 20 of the MC, which exempts the carrier in whole or in part from its liability if the person making the claim for damages caused the damage or contributed to causing the damage by an act or omission that was negligent. The claimant will hardly be able to dispel the allegation of negligence.
