When can a notice “in writing” be successfully made by telephone?

20 July 2018

Patricia Wing, Simon Phippard

Summary

This preliminary ruling of the ECJ, in a case between a Finnish airline and an insurance company concerning the liability of the airline for damages resulting from the loss of items from baggage, takes a novel approach to the meaning of “notice in writing”.

It is well known that under the Montreal Convention an airline is liable for loss or damage to checked baggage, but that complaints about loss must be made in writing within 7 days. Under EU Law, the liability of an air carrier in respect of passengers and their baggage is governed by all provisions of the Montreal Convention.

The dispute and ruling

Kristina, a passenger on a Finnair flight, had items missing from her checked in baggage on arrival. On the day of arrival, she telephoned a customer service representative for Finnair, who entered the information into Finnair's system. Her insurers, Fennia, compensated Kristina, but sought recourse against Finnair, who argued that Kristina had not filed a written complaint within the 7 day period.

The Supreme Court of Finland decided to stay the proceedings and refer the following four questions to the Court for a preliminary ruling:

  1. Does Article 31(4) of the Montreal Convention require that,  in order to preserve a right of action, a passenger must not only give notice of a complaint in due time but also make the complaint in writing? This was answered in the affirmative, that the "complaint must be made in writing, in accordance with Article 31(3) thereof, failing which no action may be brought".
  2. Can the requirement for writing be fulfilled by an electronic procedure and also by being registered in the air carrier's information system? Yes, "in writing" was interpreted as referring to any set of graphic signs. Accordingly a complaint, "such as that at issue in the main proceedings, recorded in the information system of the air carrier must be regarded as meeting the requirement of being in a written form under 31(3) of the Convention”.
  3. Can the requirement of 'in writing' be fulfilled where, with the knowledge of the passenger, the representative of the carrier records on paper or electronically, the passenger's complaint in the carrier's system? Yes, provided that the passenger can check the accuracy of the submission and where appropriate, amend or even replace it before expiry of the period provided for in Article 31(2) of the Convention.
  4. Does Article 31 subject a complaint to further substantive requirements that that of giving notice to the carrier of the damage sustained? No: there are no further requirements other than those laid out in relation to questions 1 to 3.

Aviation lawyers have traditionally been used to requiring compliance with the written notice requirements for cargo and baggage claims under the Warsaw/Montreal regime – in some instances these impose short time limits. So far as we are aware this is the first time that a written record of the complaint by the airline without any written follow up by the claimant has been held to satisfy that requirement.  Airlines in Europe should be aware that their own written record of a telephone complaint will mean they cannot rely on the absence of a written complaint from the passenger.

Case C-258/16: Finnair Oyj -v- Keshinainen Vakuutusyhtio Fennia, 12 April 2018

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