IATA Aviation Liability Reporter 2017

The Russian Federation is not a party to the Montreal Convention of 1999. However, in certain cases, Russian courts apply the provisions of the Convention to aviation liability claims. In Lubchich S. v. Deutsche Lufthansa AG, a passenger filed a claim for compensation due to loss of his baggage. Deutsche Lufthansa AG is a foreign company registered in Germany. Under Article 1186 of the Russian Civil Code, the law to be applied in civil law relations that concern a foreign person or entity must be determined in accordance with international agreements of the Russian Federation, the Russian Civil Code, and other laws and usages acknowledged in Russia. Under Article 1211 of the Russian Civil Code, the law of the carrier applies to the air carriage contract in the absence of mutual consent of the parties regarding the applicable law. Therefore the Russian court applied German law to the case, and in particular the provisions of the Montreal Convention. However, while the Montreal Convention provides a limit on carrier liability for lost baggage, it does not establish a method to calculate compensation. The court therefore applied the provisions of the Warsaw Convention 1929 as amended by the Hague Protocol of 1955 when calculating compensation for certain amounts of lost baggage.

In Rossiya Airlines vs Air Gates of Northern Capital, the carrier, Rossiya Airlines, compensated the passenger for the loss of one item of baggage during international carriage from Bishkek, Kyrgyzstan to Saint -Petersburg. The carrier sought indemnification from Air Gates of Northern Capital, the operator of the airport of destination, as it claimed that the airport operator was liable for the loss. In this case, the court had to determine at what stage of transportation the loss took place. The court applied Article 18 of the Warsaw Convention, which provides that the carrier is deemed liable for safety of registered baggage.

However, at different stages of the air carriage the baggage came to be under the actual control! of a representative of the airport of departure, and of the carrier, and also of the airport of destination. To render judgment, the court referred to the provisions of the Guideline «РБП-85» on Luggage Carriage on the USSR Airlines (the Guideline) In accordance with this Guideline, to demarcate the liability of the carrier and liability of the airport for the loss of or damage to baggage during the period when the baggage is not under the actual control of the carrier, a special baggage register is issued at the airport of departure. Upon the aircraft's arrival, the airport operator can note in the baggage register anything raising concerns as to the condition or amount of the arriving baggage, which might suggest loss or damage in transit. That procedure was described by the court as a well-established and broadly -used commercial practice in air carriage.

Since usage or practice is recognized as a source of Russian civil law, the court applied the rule stipulated by the above-described usage to the issue at hand. The court found that all items of baggage registered for the flight were properly loaded on board the aircraft at the airport of departure. At the airport of destination all items of baggage arrived without any reservation. Therefore, the operator was found liable for the baggage loss.

In Ch. vs Omsk airport: Air company Sibir (S7 Airlines) a woman filed a claim for compensation for injury and moral damages against the airport and the carrier She had slipped down a set of stairs during disembarkation and sustained injury as a result. Under Russian civil legislation, aircraft are considered to be a *source of increased danger The operator of a source of increased danger is liable for damage inflicted in the course of operation, regardless of fault. The only defences to such injury are force majeure and wilful intent / gross negligence on the part of the injured party. Therefore, in a case of passenger death or injury during domestic flight, the carrier will be responsible on a strict liability basis. The court of first instance concluded that $7 Airlines was liable for the injury, regardless of fault, because the injury had been inflicted during the operation of a «source of increased danger». However, Omsk Regional Court, an appellate court, set aside that first instance ruling. The Omsk Regional Court admitted that the passenger was injured, within the territorial boundaries of the carrier's liability, since in accordance with Article 17 of the Russian Air Code, the air carriage of the passenger shall incorporate the period of time from the moment of the aircraft passenger passes the preflight examination for boarding the aircraft, and until the moment, when the aircraft passenger leaves the airfield under the surveillance of the air carriers authorized persons. However, the court concluded that the air stairs could not be qualified as the source of increased danger since it was firmly fixed. In addition, the injury did not result from operation of the aircraft, and those characteristics of the aircraft which make aircraft a source of increased danger did not, in fact, cause the injury. The Omsk Regional Court stated that the carrier's liability for an activity which lacks direct connection with the main function of the air carrier should be based on the general grounds of civil liability including, inter alia, the need to prove the carrier's fault being an essential element of such liability. On the facts, the carrier successfully proved that it had undertaken all possible measures to prevent the passenger's injury and, therefore, proved it was not at fault.

In S.O. vs Atlas Jet, a family claimed compensation from the carrier for the death of the family primary earner in a domestic air accident. Article 116 of the Russian Air Code provides that the carrier is liable to passengers in the order established by (1) Russian legislation, (2) an international treaty to which Russian Federation is the party, and (3) the passenger air carriage agreement. In S.O. vs Atlas Jet, the deceased passenger was on a business trip at the time of the accident, Le, while performing obligations under his employment contract. In such cases, Russian social insurance legislation provides for payments from the state Social Insurance Fund to dependents of the deceased primary earner. The court found that the family members were receiving such social insurance payments. Therefore the court concluded that the family members had a right only to compensation for the loss of the primary earner's wages to the extent such right exceeded the social insurance payments.

A claimant filed a claim to the Supreme Court of the Russian Federation to hold invalid the second sentence of paragraph 6 of the Federal Aviation Rules established by the Russian Ministry of Transport, under which the carrier has a right to appoint a third party to perform the carrier's obligations under the air carriage agreement The claim was based on the opinion of the applicant that such a transfer of the obligation from the contractual carrier to another carrier, whose rating is lower, violates the right of a passenger to contractual freedom and has implications also for flight safety.

The court dismissed the claim, emphasizing that: (a) the condition establishing that a carrier who entered into the air carriage contract shall perform its obligations itself is not a substantial condition (i.e., a condition which should be clearly agreed between the parties to have a contract concluded) for contracts of such type under Russian legislation; (b) the principle of replacing a carrier in substitution for another is established in international law, in particular in the Convention supplementary to the Warsaw Convention and which is a part of the Russian legal system; (c) the right of the carrier to appoint another carrier to perform its obligations under the air carriage agreement cannot violate the right of a passenger in terms of flight safety, as the safety requirements applied in Russia are the same for all carriers regardless of their rating.