On 9 April 2021 the Italian Supreme Court ruled on a very interesting case for damages involving all three levels of judgement. By way of background, two Italian passengers sued Aeroflot Russian Airlines – the national air carrier based in Moscow – before the Justice of the Peace of Catania (Sicily). The purpose for the claim was to obtain compensation for damages due to a delay on the Shanghai/Moscow flight, as a result of which they had missed the coincidence for another flight on the route Rome/Catania. The Italian Justice of the Peace accepted the claimant’s request and ordered Aeroflot to compensate the passenger, considering applicable to the case the EC Regulation 261/04. This decision, after the appeal filed by Aeroflot, was also confirmed in the second instance by the Court of Catania. In this case the Court considered not applicable the 1999 Montreal Convention nor the EC Regulation 261/04.

However, it decided to apply by analogy article 3 of the EC Regulation 261/04, despite the concerned first leg flight connected two airports located outside the European Union and the fact that Aeroflot is an extra-EU carrier. Against this decision Aeroflot challenged this section instance decision before the Italian Supreme Court, which completely overturned the previous judges stating that the provisions of EC Regulation 261/04 cannot be applied by analogy, given the exceptional nature of the Regulation itself. Indeed, according to the Supreme Court, the EC Regulation 261/2004 provides a strict liability for airlines regardless of the existence of damages and the causal link with the debtor’s conduct. The Italian Supreme Court has ruled that Article 1223 of the Italian Civil Code (liability for non-performance or delay) shall apply in this case, which obliges the debtor to compensate only those damages that are a direct and immediate consequence of its breach, as well as Article 26979 of the Civil Code (burden of proof), stating that the burden of proof lies with the claimant. However, on this matter the Supreme Court has found that the airline’s default resulted in a flight delay which is not a breach of the contract of carriage, but only an inexact performance which does not cause a significant prejudice (beyond the “benefits and advantages” extraneous to the contract of carriage, e.g. loss of profit or consequential damages) and so the right to a compensation of damages.

This article was originally published by Marco Marchegiani of Studio Pierallini in Aviation Journal January 2022, no. 1.

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