The appropriate test for “agency” under the Montreal Convention: the Decision in Colin Mather v Easyjet Airline Company Limited & DRK Hamburg Mediservice gGmbH [2023] CSIH 8

Tuesday 14th February 2023

On 10 February 2023, the Inner House of the Court of Session handed down its judgment in the reclaiming motion in the cause Colin Mather v Easyjet Airline Company Limited and DRK Hamburg Mediservice gGmbh (“DRK”). The court upheld the first instance decision and confirmed the applicable test for determining whether a person is an agent of an airline. The Inner House confirmed that the relevant question is whether the task the party was undertaking was one which was executed in furtherance of the contract of carriage. In the specific circumstances of the case, the Inner House answered this question in favour of the pursuer and respondent. The court also considered Easyjet’s claim for contribution against DRK and the pursuer’s secondary claim under German law against DRK.

Relevant Facts

On 15 May 2017, Mr Mather sustained serious lower limb injuries when disembarking an Easyjet aircraft in Hamburg, Germany. Mr Mather was an incomplete paraplegic, following a previous accident in 2009. Despite this, he was independent and continued to lead an active life. He was a self-employed consultant, and his job required him to travel abroad regularly. Mr Mather required the use of a wheelchair and thus special assistance when travelling by air. When booking the flight in question with EasyJet, he notified them that he required special assistance to embark and disembark the aircraft. Easyjet’s terms and conditions detailed that the passenger was to advise a member of Easyjet’s staff on arrival at the airport and they would organise assistance. The pursuer’s boarding pass also stated that the passenger was to contact a member of staff at the bag drop area.

When the flight arrived in Hamburg assistance personnel, employed by DRK, assisted the pursuer from his seat to the door of the plane with a narrow aisle chair. He was then transferred from the aisle chair to an airport wheelchair. One of the DRK employees, Mr Heinz, pushed the wheelchair up the ramp of the airbridge towards the terminal building. The front wheels of the wheelchair struck a raised edge at the point where the airbridge joined the terminal building. Mr Mather was thrown from the wheelchair and landed on his legs, sustaining serious and life changing injuries.

Airline Liability to Passengers

Mr Mather brought his claim against Easyjet in terms of the contract of carriage between them, as governed by the Montreal Convention 1999 (“the Convention”), incorporated into the law of Scotland by the Carriage by Air Act 1961 as amended by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002/262. The Convention applies to international carriage of persons and governs the liability of airlines for losses occurring to passengers onboard the aircraft and during embarkation and disembarkation. The objectives of the Convention are to provide certainty and consistency in the rules that govern international air travel.

There was no dispute that the event which caused the injury was an “accident” within the meaning of Article 17(1) (Death and Injury of Passengers). It was also agreed that the accident took place during an operation of disembarking the aircraft. Accordingly, Easyjet accepted their liability to Mr Mather up to the limit of 113,100 Special Drawing Rights, as specified by the Montreal Convention.

The Convention sets out the extent to which an airline can limit their liability. This is intended to provide uniformity and certainty, balancing the rights and interests of passengers and carriers.

In accordance with Article 21 (2) of the Convention, an airline is liable above the limit unless it proves either that the damage was not caused by the fault or negligence of the airline or its agent, or that the damage was caused solely by that of a third party. Easyjet contended that they were not liable for the excess loss on the basis that the damage was caused solely by a third party, Mr Heinz, and that DRK were not their agent.

The Lord Ordinary’s decision and appeal

The case was heard before Lord Uist at First Instance. He held that Easyjet was liable to make reparation to Mr Mather for the loss, injury and damage sustained by him, without limit of liability, on the basis DRK were acting as their agent. He considered the appropriate test for agency to be whether the service being undertaken was in the furtherance of the contract of carriage. In relation to the contribution claim advanced by Easyjet, Lord Uist concluded that the claim for contribution from DRK was governed by German law and that the claim was time barred by expiration of the limitation period.

The decision was appealed by Easyjet to the Inner House. The appeal was heard by the Lord President, Lord Carloway, together with Lord Pentland and Lady Wise. One of the main issues in the case and the key question for the court to address was what meaning should be applied to the use of “agent” in accordance with the Convention.

Easyjet submitted that the Lord Ordinary’s formulation of the test for agency was incomplete. They contended that in addition to the task in question being in the furtherance of the contract of carriage, it must also be a task that could or should have been undertaken by the carrier. They relied upon the fact EC Regulation 1107/2006 (concerning the rights of disabled persons and persons with reduced mobility) (PRM Regulations) placed responsibility, for assisting persons with embarking and disembarking, on the airport.

What is the meaning of “agent” in the context of the Convention?

The Convention does not define “agent”. The Inner House recognised that an autonomous interpretation must be given to the terms of the Convention and that “agent” should not be interpreted by reference to domestic law. In doing so, the Court had regard to a number of international cases , particularly those issued by the Courts of the United States. The Court found that there is a large body of decided cases that support the proposition that DRK is an agent of the carrier when it conducts the operation of disembarking the passenger from the aircraft. Many of these cases grew out of attempts by passengers to sue persons or organisations other than the carrier so as to try to avoid the Warsaw Convention limitation of liability, the extinction of the claim or the definitional problem created by “accident” or “bodily injury”.

The Inner House held that the series of earlier Convention decisions demonstrate that the test for determining whether a party was the carrier, or an agent of the carrier, was whether the task was executed in furtherance of the contract of carriage. They held that this test provides a “neat, clear, and easily understood principle”.

Having satisfied themselves on the appropriate test for agency, the court went on to consider whether the service of assisting the disembarkation of Mr Mather was a task in furtherance of the contract of carriage. Since it was acknowledged that the pursuer was disembarking at the material time, the court held that this test was easily met. The court referenced the “gate-to-gate” principle, whereby the carrier is responsible for what happens between the departure and arrival gate. In analysing this concept further, the judgement states:

“Although there may be minor variations from airport to airport, the contract of carriage for all passengers commences, at the latest, when the passenger is checked through the gate at the airport of departure. It is at that point that the passenger for a particular flight, operated by a particular airline, is isolated from other airport users. The contract continues until the opposite occurs at the destination and the passenger is released into parts of the airport used by, amongst others, the passengers of other airlines... The airline is responsible for the actings of all those assisting passengers along this route. These assistants are the airline’s agents for the purposes of the Convention.”

Easyjet sought to argue that such an interpretation of agency will cause difficulties for insurers in assessing risk. The court rejected this submission. They held that this definition clearly defines the limits of the contract of carriage for the benefit of all and promotes the objectives of the Convention.

With reference to the PRM Regulation, the court confirmed that this is a public law measure, intended to strengthen the protection afforded to disabled and reduced mobility passengers; not to alter or diminish the Convention rights. The court found the fact that the PRM Regulations required the airport to make the practical arrangements had no material bearing on the definition of agency and could not “remove or diminish” an airline’s responsibility for their PRM passengers under the Montreal Convention.

The court also held that an airline cannot use their terms and conditions to get around their responsibilities in terms of the Convention. With reference to Article 26 of the Convention, the court concluded that any such condition would be regarded as null and void.

Separately, the Inner House adhered to the Lord Ordinary’s declarator that the claim for contribution is governed by German law and is time barred. The Court addressed Mr Mather’s alternative case against DRK under German law, which was required if the court held Mr Heinz was not Easyjet’s agent. The Court considered the evidence of German Lawyers called by the pursuer and DRK and opined that DRK would have been liable for their employee’s negligence in the event that the Court had not found in the pursuer’s favour, in full, against Easyjet on the agency point.

Conclusions