Silverman v Ryanair. The High Court unconvincingly on the Montreal Convention, lex fori as lex causae for the interpretation of ius gentium, qualifying air carriage claims under Rome I, II, and displacing lex loci damni under the latter.

In Silverman v Ryanair DAC (Rev1) [2021] EWHC 2955 (QB), claimant was injured whilst going down stairs at an airport terminal in England. The claim is subject to EU private international law. Jurisdiction for the English courts in this personal injury claim is not disputed.

Under A5 Rome I, contracts for carriage of goods are subject to the ordinary lex voluntatis rule, while for carriage of passengers, parties can only choose from a limited selection of leges contractus. The standard approach is for  general terms and conditions to select the law of the carrier’s habitual residence or his place of central administration, which is entirely kosher under Rome I. Unless the booking qualifies as package travel, it essentially means that passengers are generally less protected than ordinary consumers under A6 Rome I.

In the case of Ryanair, the default choice inevitably leads to Irish law, except in this case (because Irish law would lead to higher damages), the airline unusually seeks to divert from its default choice of law.  The airline’s relevant clause, reads

8.2.4: Governing Law: “Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms and Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland and any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts.”

The Montreal Convention for the Unification of Certain Rules for International Carriage by Air 1999 is unaffected by Rome I as a result of the Regulation’s A25, which gives clear priority to multilateral Conventions at least if the Convention concerned also includes non-EU Member States. The Convention also operates to make the choice of court provision invalid, as discussed ia in CJEU  C-213/18 Adriano Guaitoli et al v Easyjet.

Claimant however argues that assessment of quantum of damages is not regulated by Montreal and therefore remains subject to the lex voluntatis. This is where the second line of Ryanair’s defence comes in, namely an attempt to qualify the claim as one in tort, subject to Rome II’s lex loci damni rule, rather than Rome I’s lex voluntatis.

In essence therefore the question is a matter of Treaty interpretation viz the Montreal Convention (what does it mean to regulate in its provisions on liability and damages), subsequently secondary EU law interpretation viz Rome I and II (qualification: is it a claim in contract or tort, and once that held, does the lex casuae indicated by the relevant Regulation, cover quantum of damages).

Master McCloud turns to international comparison not by way of binding authority but pro inspiratio seeing as the case concerns an international Convention [52]. Scalia J’s ‘Pass-through’ approach to the lex fori’s choice-of-law rules in Zicherman (1996) is the approach also followed in this judgment. The judge uses the formulation by Bader Ginsburg J in El Al Israelthat Warsaw drafters intended to resolve whether there is liability, but to leave to domestic law (the local law identified by the forum under its choice-of-law rules or approaches) determination of the compensatory damages available to the suitor.”

Comparative case-law analysis makes sense. However one would have thought a starting point should have been analysis of the Convention and its travaux itself. Master McCloud does get to that when considering the rather awkward , counsel-inspired idea that there needs to be a discussion of the law that applies to the interpretation of the Convention. Determining the ‘Applicable law to matters of interpretation of the Convention’ might perhaps make sense in a dualist jurisdiction like the UK?

At [59] the judge holds the lex causae for interpretation of the Convention is the lex fori, English law therefore. At [61] he calls this

Convention law as understood by this court, ie the lex fori in that rather special international sense.’

Here I am lost.

The judge then employs the ‘natural language’ approach to determine what parts of the Montreal liability scheme parties can and cannot contractually be negotiated away.

Only the liability issues that have ‘passed through’ to the lex fori are then considered with a view to determining the qualification exercise: is the claim one in contract or one on tort. The judge raises the possibility that the claimant could have construed the claim as being a ‘Convention claim incorporated in the contract’ [64] however he holds that claim is not brought on that footing:

‘the Claim and Particulars are clear: they plead a claim for damages for breach of the Convention, they do not plead a claim in the law of contract’ [64].

That, I would submit, is wrong. The claim is subject to European conflict of laws rules. These require the judge to qualify the claim subject to the autonomous interpretation of ‘contract’ and ‘non-contractual obligation’ as most recently discussed by the CJEU in Wikingerhof. While I am the first to acknowledge claim formulation is a powerful tool to manage qualification (indeed Wikingerhof confirms as much), I do not think deference to claimant may be as large as suggested here.

The judge proceeds with the non-contractual nature (causing injury to the claimant through negligence [65]), points out that the Convention covers both contractual and non-contractual claims [66] and seeks support in his analysis on tort and contract in Prof. Thomas Kadner Graziano’s 2016 paper in the Yearbook of Private International Law. With respect, I do not think Thomas’ paper supports the conclusions in this case.

At [72][73] the judge then rather summarily and using A4(3) Rome II displaces the lex loci damni for the ‘passed through’ claim, in favour of Irish law, the lex contractus to the contract of carriage. Once the Rome II path chosen (of which, per above, I am not convinced), I do not think the lex loci damni may be pushed aside quite as concisely as this.

The relationship between international Conventions and European conflicts rules is not always straightforward. Yet here I think it has been presented a touch too convolutedly.

Geert.

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