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18.02.2022

No claim from strict liability in case of swallowing a porcelain splinter on board

The district court of Rostock (Germany) ruled that the plaintiff, who swallowed a piece of porcelain on board, was not entitled to damages for pain and suffering and reimbursement of treatment costs under Article 17(1) of the Montreal Convention.

In the present case, the husband booked a cruise "Caribbean Islands 2” for his wife, their daughter – the plaintiff, who was about 1 1/2 years old at the time - and himself. The plaintiff was served a meal during the outbound flight. The dishes were made of porcelain. However, the plaintiff collapsed in connection with the serving of the meal. The cause is disputed.

The applicant, represented by her legal representatives, then brought an action, arguing that she had suffered considerable injuries in the throat. The porcelain used was no longer "roadworthy", which should have been recognised by the on-board staff. After the incident, the plaintiff had been in pain for a long period of time. Furthermore, there had been negative effects on her speech development. Ultimately, the defendants were to be blamed for a breach of their duty to ensure road safety.

In the court's view, however, the action must be dismissed. It argues that Art. 17 para. 1 of the Convention requires an "accident", which must have occurred on board the aircraft or during boarding or disembarking. The ordinary meaning of the term "accident" is that of an unforeseen, unintended, harmful event. The concept of accident covers, in principle, any event occurring on board an aircraft in which an object used in passenger service has caused physical injury to a passenger, without it being necessary to determine whether the event is due to an aviation-specific risk.

The court is of the opinion that not every health impairment or physical injury of a passenger on board an aircraft is covered by Art. 17 of the convention. It is necessary that an object used in passenger care or an act or omission of the on-board staff in breach of duty must have been the cause of the health impairment or bodily injury.

After the taking of evidence, it is only certain that the plaintiff swallowed, whereby it could not be completely clarified whether this was caused by a foreign object in the food served on board.

Ultimately, the decisive factor was the stated diagnosis "T 18-foreign body in alimentary tract” of the heard doctor, who examined the plaintiff shortly after the flight. This was a documentation designation given for the case and said nothing about whether a foreign body injury had actually occurred.

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