In its judgement dated 10 February 2022 (No. 20-20.814), the Second Civil Chamber of the French Cour de Cassation (Supreme Court) ruled on the link between an action brought by an air accident victim against an air carrier and the referral made by the same victim to the Commission d’indemnisation des victimes d’infractions (CIVI).
CIVI is a specialised body attached to each French judicial court. When a case is referred to the Commission by direct or indirect victims of criminal injury, it forwards their claim for compensation to the French Victims’ Guarantee Fund (FTGI) which is in charge of compensating victims of criminal injury.
Principle of full reparation for harm caused by criminal injury
Article 706-3 of the Code of Criminal Procedure provides that:
‘Any person, including any public official or any member of the military, who has suffered harm as a result of a substantive criminal offence whether, voluntary or involuntary, may obtain full reparation for the damage resulting from criminal injury (…)’.
The CIVI mechanism allows for FGTI to make compensation in full directly to the victim. In the event of an action then being brought against the person liable, FGTI is subrogated in the rights of the victim, his or her beneficiaries, or insurer, to claim reimbursement of the sums paid.
Principle of limitation of compensation for victims of air accidents
Article L. 6421-4 of the Transport Code provides that:
“Liability of air carriers not covered by Article L. 6421-3 is governed by the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal on 28 May 1999, in accordance with the conditions defined in Section 2 of Chapter II of this Title.
Nevertheless, unless otherwise agreed, the liability of an air carrier engaged in the carriage of passengers free of charge shall not exceed the amount specified in Article 21(1) of the Convention referred to in the first paragraph of this Article unless it is proved that the damage was caused by wrongdoing attributable to the carrier or his servants or, if the damage exceeds that amount, that it was caused by inexcusable wrongdoing by the carrier or his servants. It is inexcusable to be guilty of wilful misconduct which involves awareness of the probability of damage and its reckless acceptance without valid reason.’
Hence, liability of the air carrier is governed by the provisions of the Montreal Convention of 28 May 1999 in accordance with the conditions defined in paragraph 2 of Article L.6421-4 of the Transport Code.
Judgement of the Second Civil Chamber of the Cour de Cassation dated 10 February 2022 (No. 20-20.814)
In this case, a mother of five children who had lost both her husband and father in an aircraft accident brought an action for compensation before the TGI (High Court) of Clermont-Ferrand.
The judicial court and then the Poitiers Court of Appeal limited the amount awarded in compensation to the ceiling set by the Warsaw Convention, i.e. 114,336 euros per passenger.
In parallel, as the accident had been caused by a criminal offence, the victims also filed a claim with their jurisdictional CIVI under Article 706-3 of the French Code of Criminal Procedure, requesting compensation in full of their loss.
CIVI rejected their request on the grounds that they could not claim greater compensation than that already obtained. This decision was confirmed by the Poitiers Court of Appeal.
The passenger’s beneficiaries then appealed the CIVI decision, considering that the Clermont-Ferrand court had not awarded compensation in full.
In its ruling dated 22 September 2020, the Poitiers Court of Appeal confirmed the decision handed down by CIVI. In particular, it considered that the compensation ceiling, insofar as it is derived from an international convention, is of higher value in the hierarchy of legislative acts than Article 706-3 of the Code of Criminal Procedure, derived from domestic law.
The Second Civil Chamber of the Cour de Cassation overturned this appeal decision and ruled that CIVI could not rely on the threshold provided by the Warsaw Convention:
“where it receives a claim brought by the victim of a criminal injury attributable to an air carrier and based on the first of the aforementioned texts, CIVI, which is required to ensure compensation in full of the harm suffered, in accordance with the ordinary rules of liability, without loss or profit for the victim, cannot limit the compensation payable by FGTI to the coverage ceiling provided for in the last of these texts, which governs only the liability of air carriers.’
Thus, the Court of Appeal confirms that the limitation of liability established by the Warsaw Convention does not apply where the harmful act is also a criminal offence, in which case the victim may claim for compensation in full.
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Warning: this article does not constitute a consultation and every situation requires individual analysis.
An aviation lawyer is competent to determine the nature of the flight, the applicable legislation and rules of liability, and the right to compensation of direct and indirect victims of an air accident.
