In Akulinina and Kondrashova -v- Ifly S.A. the High Court considered, for the first time, the jurisdiction provisions in Article 33(2) of the Montreal Convention. These provisions are often referred to as providing the Convention’s “fifth jurisdiction” (being an additional basis of jurisdiction beyond the four identified in Article 33(1)). Spencer Turner considers the important decision in this article.
The claim arose out of a fatal helicopter crash just off the coast of Poros, Greece. The pilot and the two passengers onboard were killed. The helicopter was Greek-registered and was operated by the Defendant, a Greek company based at Megara Civil Airport, Greece. The cause of the crash has yet to be determined by the Greek Accident Investigation Authority.
The two Claimants claimed as dependants of one of the passengers, Mr Akulinin. The First Claimant was his mother and administratrix of his Estate and the Second Claimant was his partner. Mr Akulinin and the Second Claimant lived together in London and there was no dispute between the parties that their principal and permanent residence was in the UK.
The Claimants brought their claim under Article 17 of the Montreal Convention. Article 33(2) was identified as the basis upon which the court had jurisdiction to hear the claim.
Article 33 on jurisdiction provides that:
- An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
- In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
The court considered that in order for jurisdiction to be established under Article 33(2), three conditions have to be satisfied:
- The passenger must have their principal and permanent residence in the UK;
- The carrier must operate services for the carriage of passengers by air to or from the UK either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement; and
- The carrier must conduct its business of carriage of passengers by air from premises in the UK leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
The Parties’ Positions
There was no dispute that condition (1) was satisfied.
The Claimants contended that, as to condition (2), the Defendant operated services for the carriage of passengers by air to or from the UK on another carrier’s aircraft pursuant to a commercial agreement and, as to condition (3), that the Defendant conducted its business of carriage by air from premises in the UK leased or owned by another carrier with which it had a commercial agreement.
The court undertook a detailed consideration of the Defendant’s history and operations to consider if the Claimants could make good their contentions as to conditions (2) and (3).
The Defendant provided witness evidence from their CEO, Mr George Verbis. The Defendant’s business was the provision of flights, normally by helicopter, for VIP customers. The aircraft usually fly from Greek airports to other high-end tourist destinations around Greece and the aircraft would be chartered at the request of customers. The Defendant had previously flown customers as far as Spain, Denmark and Poland, but they had never operated a flight to England.
The Defendant had a longstanding relationship with a hotel known as the Amanzoe resort. The Amanzoe resort was advertised on the Defendant’s website and, in turn, the resort actively encouraged guests to use the Defendant’s services. The Amanzoe resort also offered its own private jet service (‘the Aman Jet’), which would allow someone from the UK to travel to a Greek airport and then take one of the Defendant’s helicopters from the Greek airport to the Amanzoe resort. The Aman Jet was registered in Malta and operated by a company called Emperor Aviation Limited which also had a Maltese address.
The court also said that there must have been some commercial relationship between an ‘Aman entity’ and Emperor Aviation Limited. The Aman entity was identified by the Claimants as Aman Grou S.a.rl., a company which was registered in Switzerland which, on the Aman website, stated that its customer services and legal departments are both based in London.
The Claimants’ Case on Jurisdiction
The Claimants therefore sought to argue that jurisdiction under Article 33(2) could be established by virtue of a commercial partnership between the Defendant and Aman Group S.a.r.l (‘Aman’). The Claimants contended that:
- Aman sells holidays at the Amazoe resort via its customer services department in London.
- Aman then contracts to carry its UK clients from the UK by private jet to Athens. Aman is the contracting carrier of that flight.
- The Aman Jet is used to make that flight, which is based in the UK and operated by Emperor Aviation Limited, which has a representative office in London.
- Aman’s customers then transfer to one of the helicopters operated by the Defendant to travel from Athens to the Amanzoe resort.
- The precise relationship between the Defendant and Aman was not known but (i) two of the Defendant’s helicopters had Amazoe branding, (ii) Amanzoe was one of the Defendant’s ‘partner destinations’ and (iii) in August 2019, more than 50% of the flights carried out by the helicopters in the Defendant’s fleet was to Amanzoe.
The Claimants therefore contended that Article 33(2) applied because: (i) the Defendant (i.e. “the carrier”) operated services for the carriage of passengers by air to or from the UK on Aman’s (i.e. “another carrier’s”) aircraft, pursuant to a commercial agreement; and (ii) the Defendant conducted its business of carriage of passengers by air from premises in the UK leased or owned by Aman, with which the Defendant has a commercial agreement.
The court pointed out at  that there was no evidence before it as to what the commercial relationship is, or was, between the Defendant and Aman. It was clear that there was ‘some sort’ of relationship relating to the display of the Amanzoe name and branding on two of the Defendant’s helicopters but that would not amount to an agreement relating to the provision of joint services for carriage of passengers by air and ‘certainly not’ one pursuant to which the Defendant operated services to and from the UK on an Aman aircraft.
The court said that the Claimants were relying on inference and speculation as to the nature of the relationship between the Defendant and Aman and, furthermore, that there was nothing in the evidence which suggested that the flights on the Aman Jet were part of the Defendant’s operations and nor was there anything in the evidence which suggested that the Defendant conducted any business from Aman’s London offices.
The court concluded at  that, taking the language of Article 33 at face value and giving it its natural meaning, the Claimants had failed to establish that at the time of the accident the Defendant either (i) operated services for the carriage of passengers by air to or from the UK on Aman’s aircraft; or that (ii) it conducted its business of carriage of passengers by air from premises in London leased or owned by Aman (or, indeed, from premises in the UK at all).
The court further held that an alternative case on jurisdiction under Article 33(1) of the Convention failed because the Defendant had the better argument that it was not domiciled in the UK.
This was the first time that the High Court had considered the so called ‘fifth jurisdiction’ provided for in the Montreal Convention. The judgment provides a helpful reminder as to the relevant principles of interpretation which are relevant to Convention claims (-) and demonstrates the difficulties that Claimants can come up against when the precise nature of any alleged commercial partnership or joint business operation is not clear. It also illustrates the quality of evidence of any such agreements that the court would expect to see in order to be satisfied that a particular relationship exists.