McAuley v Aer Lingus Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 24 March 2011
• Neutral Citation: [2011] IEHC 89
• Docket Number: [2008 No. 8727 P]
• Court: High Court
• Date: 24 March 2011

[2011] IEHC 89

THE HIGH COURT

[NO. 8727 P/2008]

McAuley v Aer Lingus Ltd & Ors

BETWEEN

JOHN Mc AULEY

PLAINTIFF

V.

AER LINGUS LIMITED, FRANK FEENEY AND SERENA WYSE

DEFENDANT

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR ART 17

ABRAMSON v JAPAN AIRLINES CO LTD 739 F 2D 130

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR ART 1

AIR NAVIGATION & TRANSPORT (INTERNATIONAL CONVENTIONS) ACT 2004 S4

S SMYTH & CO LTD v AER TURAS TEORANTA UNREP SUPREME 3.2.1997 1997/6/2287

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR ART 29

RSC O. 19 r28

CONSTITUTION ART 40.3

CONSTITUTION ART 40.6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

MILMO & ROGERS GATLEY ON LIBEL & SLANDER 11ED 2008 165

SIDHU & ORS v BRITISH AIRWAYS PLC; ABNETT (AKA SYKES) v BRITISH AIRWAYS PLC 1997 AC 430 1997 2 WLR 26 1997 1 AER 193

EL AL ISRAEL AIRLINES LTD v TSENG 525 US 155

AER LINGUS GENERAL CONDITIONS OF CARRIAGE (FOR PASSENGERS & BAGGAGE) ART 11

AER LINGUS GENERAL CONDITIONS OF CARRIAGE (FOR PASSENGERS & BAGGAGE) ART 15

AER LINGUS GENERAL CONDITIONS OF CARRIAGE (FOR PASSENGERS & BAGGAGE) ART 11.1

AER LINGUS GENERAL CONDITIONS OF CARRIAGE (FOR PASSENGERS & BAGGAGE) ART 15.1.1

AER LINGUS GENERAL CONDITIONS OF CARRIAGE (FOR PASSENGERS & BAGGAGE) ART 15.1.2

BARRY v BUCKLEY 1981 IR 306 1981/9/1485

O'KEEFFE v KILCULLEN & ORS UNREP O'SULLIVAN 24.6.1998 1998/28/11429

FARLEY v IRELAND & ORS UNREP SUPREME 1.5.1997 1998/6/1512

LOWES v COILLTE TEORANTA UNREP HERBERT 5.3.2003 2003/32/7625

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR ART 1.1

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR ART 17.1

NOLAN v AER LINGUS GROUP PLC UNREP LINNANE 9.11.2009 2010/40/9999

SHAWCROSS & ORS SHAWCROSS & BEAUMONT ON AIR LAW 4ED 1977 PARA 720

GALVIN v AER RIANTA & AER CHARTER 1995 3 IR 486 1994/3/754

AVIATION

Carriage by air

Limitation of liability - Whether carrier's liability limited to aircraft - Whether exclusive code for actions against air carrier - Sidhu v British Airways [1997] AC 430, Smyth and Co. Ltd v Aer Turas Teo (Unrep, SC, 3/2/1997), Galvin v Aer Rianta and Aer Charter [1995] 3 IR 486 and Farley v Ireland (Unrep, SC, 1/5/1997) followed - Montreal Convention for the Unification of Certain Rules for International Carriage by Air, article 17.1 - Claim struck out (2008/872P - Hedigan J - 24/3/2011) [2011] IEHC 89

McAuley v Aer Lingus Ltd

Facts: The plaintiff had been a passenger on a flight and had sought more intoxicating liquor than the defendants would serve to him. The aircraft attendants had contacted Lithuanian police to escort the plaintiff from the flight on arrival. The plaintiff claimed damages for inter alia slander, negligent misstatement, falsehood and intentional infliction of mental suffering. The defendants sought an order striking out the plaintiff of the plaintiff as frivolous or vexatious and disclosing no reasonable cause of action pursuant to Order 19, rule 28 Rules of the Superior Courts. The issue arose as to the application of the Montreal Convention, implemented into Irish law by the Air Navigation and Transport (International Conventions) Act 2004 and whether the action was not covered by it and whether the alleged defamation had occurred in the jurisdiction on arrival. The issue arose further as to the construction of the complaint and whether the actions complained of took place either on the aircraft or disembarking the aircraft.

Held by Hedigan J. that the application of the Convention was not limited to his carriage on the plane or his embarking or disembarking. It extended to anywhere that he was required to be for the purposes of disembarking the aircraft. The actions complained of here occurred on the aircraft. They were consequently encompassed and governed by Article 17 of the Montreal Convention and could not give rise to the action pleaded by the plaintiff. The plaintiff had no reasonable chance of succeeding and his claim would be struck out.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Hedigandelivered on the 24th day of March 2011.

2 1. The plaintiff's claim is for damages for slander or in the alternative for negligent mis-statement and/or for injurious falsehood and/or intentional infliction of mental suffering and/or for breach of the plaintiff's constitutional rights. In this Motion, the defendants seek an Order striking out the plaintiff's claim as being bound to fail, disclosing no reasonable cause of action, and/or being frivolous or vexatious.

3 2. The plaintiff is a businessman and resides at Cullion, Dungloe in the County of Donegal. The first named defendant is a limited liability company carrying on the business of an airline and with a registered address at Dublin Airport in the County of Dublin. The second named defendant is an airline pilot employed by the first defendant. The third named defendant is a flight attendant also employed by the first defendant.

4 3. On the 12 ^th March, 2008, the plaintiff was travelling with Aer Lingus from Dublin to Vilnius, Lithuania on flight EI 396 which departed Dublin at 15:15 in the afternoon. At the beginning of the flight the plaintiff asked the third named defendant to provide him with four alcoholic drinks to consume during the course of the flight which was three hours fifteen minutes in duration. This request was refused by the third named defendant who informed the plaintiff that only two alcoholic drinks could be provided at any one time. The plaintiff rang the bell on a number of occasions requesting more alcohol and questioning the first named defendant's policy in relation to serving alcoholic drinks. On arriving in Lithuania, the plaintiff, on reaching the door to exit the aircraft was approached by the second and third named defendants who claimed that he had been intoxicated on board the aircraft. The second named defendant contacted the Lithuanian police and two police officers escorted the plaintiff from the aircraft. The Lithuanian police spoke to the plaintiff on the tarmac and then allowed him to leave. The second named defendant wrote a report to the Lithuanian Police as follows:-

5 2 "45 mins before landing a pax in 12 D started to interfere with the cabin crew's normal duties. He continually looked for alcohol and confronted Scem S. Wyse for more during the last phase of the flight and the descent. He called cem's continually using the call bell for more alcohol. I asked for Police assistance on arrival and it arrived. On deplaning he was pointed out to police and had a verbal confrontation with me and the Cem's and delayed the normal deplaning for approximately 10 minutes. This passenger had asked on first contact for 4 bottles of wine which wasrefused by the Scem and gave him 2 instead. I recommend this pax is warned and signs a letter to ensure he does not interfere with the crew on the return leg."

6 This incident was subsequently reported in the Lithuanian Press.

4. Plaintiffs Submissions

7 2 4.1 At all times the plaintiff was sober calm and polite, he did not raise his voice nor did he leave his seat. The plaintiff as per his usual practice at the beginning of a flight asked the attendant to provide him with four miniature bottles of wine. He wished to consume the wine during the course of the flight which was three hours fifteen minutes in duration. His request was refused in an unpleasant manner. During the course of the flight the plaintiff rang the bell on just three occasions to enquire as to the first named defendant's policy in relation to serving alcoholic drinks. The third named defendant refused to engage with him. On reaching the door to exit the aircraft the plaintiff was accused in the presence of other passengers by the second and third named defendants of being intoxicated on board the aircraft. The plaintiff was shocked to be subjected to such accusations in the presence of other passengers some of whom reside in the same region as his family. The plaintiff was humiliated to discover that two Lithuanian Police Officers had been contacted. The Officers quickly established that the plaintiff was not intoxicated and allowed him to leave. The incident was subsequently reported in the Lithuanian Press which caused further distress and embarrassment to the plaintiff whose partner and child, and their family reside in Lithuania.

8 3 4.2 The airline maintains that this action is covered by the Montreal Convention which provides the exclusive cause of action for a passenger who claims for damage sustained in the course of international carriage. Article 17 of the Convention provides that the carrier can only be liable for damage sustained in the case of death or bodily injury of a passenger. The plaintiff argues that this is not an action covered by the Montreal Convention as the defamation by the defendants occurred not only during the carriage of the passenger but also subsequently in Vilinus when the defendants maliciously and wrongfully published a false report to the police which caused the plaintiff to be arrested. In circumstances where the defamation continues after the carriage has taken place it is submitted that the provisions of the Montreal Convention do not apply.

9 4 4.3 It is submitted that if the Court accepts the defendant's argument that the plaintiff's claim discloses no reasonable cause of action, the effect would be that international flights are effectively defamation free zones. If the Montreal Convention was held to apply in this case, a passenger would have no cause of action where defamed by an airline. The defendant has not been able to point to a single Irish Authority for the proposition that the convention excludes this claim. There is no uniform approach amongst the...