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04 November 2015
In a September 10 2015 decision (14-22.223) the Court of Cassation has reaffirmed that air carriers have no duty to inform passengers about required travel and immigration documents. Therefore, carriers bear no liability for denying boarding to passengers who do not comply with the applicable laws.
Three passengers – a couple and their child – booked tickets on a June 22 2012 flight from Paris to Phnom Penh. However, as a result of two of them having invalid travel documents (an expired passport and no Cambodian entry visa), the carrier denied boarding. The passengers finally departed on July 11 2012 with another airline.
The passengers sued the carrier before the local small claims court seeking compensation for the cost of the new tickets (€3,120) and claiming that the carrier should have informed them about the necessary travel documents, including the Cambodian entry visa requirements.
On September 17 2013 the court referred to the Tourism Code and held the carrier liable to reimburse the passengers €480 – the difference between the initial ticket price and the cost of the new tickets.
The carrier appealed to the Court of Cassation.
On September 15 2015 the Court of Cassation annulled the first-instance decision.
The court held that an air carrier has no duty to inform passengers of necessary travel and immigration documents, as it is not a travel agent. Thus, each passenger who buys a ticket for an international flight is responsible for obtaining all relevant and valid travel documents.
As a result, the case has been referred back to the local small claims court.
The Court of Cassation confirmed that the Tourism Code does not apply to air carriers when they sell tickets only to passengers.
The Tourism Code (inspired by the EU Package Travel Directive (90/314/EEC)) provides that any professional or company that sells travel and holiday packages has a duty to provide information to its clients (Article L111(1)) about travel arrangements and passport and visa requirements (Article L211(8)). However, Article L221(3)(d) of the Tourism Code excludes air carriers which sell flight tickets only.
Therefore, the court rightly held that an air carrier has no duty to inform passengers about the required travel documents. Passengers are entirely responsible for complying with the applicable laws and an air carrier should not be held liable for a passenger's failure to do so. According to regulations and case law, the air carrier's only duty of care is to verify – during boarding and not before – that the passengers' travel documents are not invalid (eg, expired).
In its appeal the carrier emphasised that one of the passengers was a lawyer and therefore, as a prudent and wise person, he should have verified the requirements before planning to travel with his family.
Moreover, carrier liability is exclusively governed by the Montreal Convention (or in this case, the Warsaw Convention, as Cambodia has not ratified the Montreal Convention). In accordance with Article 29 of the Montreal Convention (Article 24 of the Warsaw Convention), all actions against the air carrier, "however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention". Neither convention provides a duty to provide information to passengers. The purpose of the contract of carriage is only to provide carriage by air from the airport of departure to the airport of final destination.
This also justifies why the Court of Cassation found that no breach of contract had been proven against the air carrier pursuant to Article 1147 of the Civil Code – warning or informing passengers about travel documents requirements is not part of the carrier's contractual obligations.
The plaintiffs did not found their claim on the EU Denied Boarding Regulation (261/2004). However, had they done so, the outcome would have been the same, as Article 2(j) of the regulation (and the relevant case law) allows a carrier to deny boarding to passengers when "there are reasonable grounds to deny them boarding, such as reasons of... inadequate travel documentation".
The courts' position under the forthcoming new contract law remains to be seen. Among other things, the draft bill seeks to introduce a general duty of information into the Civil Code. However, pursuant to Article 55 of the 1958 Constitution, international conventions prevail over conflicting provisions of domestic law.
For further information on this topic please contact Jean-Baptiste Charles or Olivier Purcell at Holman Fenwick Willan France LLP by telephone (+33 1 44 94 40 50) or email (email@example.com or firstname.lastname@example.org). The Holman Fenwick Willan France LLP website can be accessed atwww.hfw.com.
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