In a decision of 8 April 2021, the First Civil Chamber of the Court of Cassation recalled that an aerial promenade on French territory and free of charge is an air transport (Civ. 1, 8 April 2021, n°19-21.842).
Article L. 6400-1 of the French Transport Code states that air transport consists of:
‘transporting by aircraft from a point of origin to a point of destination, passengers, goods or mail’
– Judgment of the First Civil Chamber of the Court of Cassation of 8 April 2021 (rendered on facts prior to the law of 8 October 2021)
In this case, an aircraft belonging to a aeroclub operating free flights in France (airplane rides) crashed in July 2007, resulting in the death of its pilot and his three passengers.
In March 2015, the beneficiaries of the victims sued the aeroclub as well as the pilot’s heir, who brought the pilot’s insurer to the proceedings.
Tribunal of Bordeaux rejected the claim for compensation of the passengers’ beneficiaries, who appealed.
In a judgment of 27 June 2019, the Bordeaux Court of Appeal ordered the pilot’s heirs to pay them part of the compensation sought and held :
- that the disputed flight was a so-called circular flight which could not be qualified as an “air transport” within the meaning of the Transport Code, on the grounds that its purpose was not to bring passengers from a point of departure to a point of destination; and
- that it was not a first flight or a flight for hire.
The pilot’s beneficiary appealed to the Court of Cassation, arguing that flight ride, even if carried out by a private person, free of charge, with an identical point of departure and arrival, shall be considered as an air transport subject to the Warsaw Convention of 12 October 1929.
The Court of Cassation overturned the appeal decision and confirmed the interpretation of the pilot’s beneficiaries:
The Court of Cassation overturned the appeal decision and confirmed the interpretation of the pilot’s beneficiaries: “an flight tour carried out by a private individual free of charge, with an identical point of departure and arrival, constitutes an air transport subject only to the provisions of the Warsaw Convention of 12 October 1929 and the liability of this private individual can only be incurred if the victim proves that the latter committed a fault”.
The Court of Cassation had already had the opportunity to rule, in 2011, in a similar factual context that ‘any air transport of persons, even if carried out free of charge, is subject, to the provisions of the Warsaw Convention of 12 October 1929, pursuant to Article L. 322-3 of the Civil Aviation Code (Cass. civ. 1, 28 April 2011, No. 09-67.729, FS-D).
Free air travel on French territory has been subject to Article L6421-4 of the Civil Aviation Code which now refers to the provisions of the Montreal Convention.
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Warning: not all air transports on the French territory are subject to the same liability regime.
A lawyer in aviation law is competent to determine the nature of the flight, the applicable liability regime, the applicable law and the right to compensation of direct and indirect victims of an air accident.
LE TUTOUR Avocats is committed to providing its clients with the best possible advice in this technical area, which it has been practising for many years in the context of air accidents in France and abroad.
