Civ 1e, 12 mai 2021, n° 19-24.229
Item
Référence
Civ 1e, 12 mai 2021, n° 19-24.229
Convention
Convention de Montréal
Article
Article 29
33
33
Pays
France
Juridiction
Cour de cassation
Composition de la juridiction
Mme Batut (président) ; M. Hascher (conseiller rapporteur) ; Mme Auroy (conseiller doyen) ; Mme Caron-Deglise (avocat général) ; Mme Berthomier (greffier de chambre)
Résumé
Flight MH370 crashes above the ocean between Kuala Lumpur and Beijing, causing the disappearance of all 239 passengers on board. The rightholders of 3 french passengers living in Beijing at the moment of the crash file a claim for damages. The first and second judges decline their jurisdiction.
Attendu
1st objection : The victims criticise the decision of the Paris first instance Tribunal and that of the Court of appeal that denied jurisdiction on the grounds of the Montreal Convention. According to the first instance decision, the sudden disappearance of the plane over the ocean, noting that no emergency landing was possible, and the the discovery of a fragment of the plane in the vicinity of an Island were sufficient to establish that the crash of the plane was the first cause of the death of the passengers.
Held : The Supreme Court upheld the decision of the Court of Appeal that rightfully examines the international jurisdiction according to art. 33 of the Montreal Convention enacting a mandatory unified liability regime. Assessing that the test of liability of the company is not verified due to an uncertain causality is not an operative plea.
2° objection : The victims argue that it follows from articles 17 and 29 that the convention is applicable only to damage claims based on death or physical injuries, however the first judge decided that it would apply to any form of damage claim.
Held : The court of appeal rightfully stated that even if the lawsuit were based on the disappearance instead of the death of the passengers [which alone is mentioned at article 17], article 29 of the Montreal Convention would apply at any action for damages.
3° objection : The victims criticise that pursuant to article 33.2 the court located the familiy's residence in Beijing: Firstly, the mother and children, having come to China only for the professional activities of the husband, had no intent to make Beijing the permanent and principal centre of interest. Additionnally, according to the victims, at the moment of the accident the familiy had only continued to live in Beijing in order to allow the children to finish the current school year; their stay was thus only temporary and transitory.
Held : With reference to article 33, the court of appeal establishes that according to the employer's certificate M. [J] has been living in China since 2007, that he was called back to Paris in January 2014 and that for familiy reasons related to the childrens' schooling, his family remained in China from where they were to return to France in june 2014. In light of the aforementioned, the court of appeal did not have to draw the alleged intent of return into consideration for to determine the principal residence, as any such intent of return would only pertain to the notion of domiciliation, not to that of residence. Thus it was able to determine the principal residence in the moment of the accident in Beijing. The objection is not well founded.
Held : The Supreme Court upheld the decision of the Court of Appeal that rightfully examines the international jurisdiction according to art. 33 of the Montreal Convention enacting a mandatory unified liability regime. Assessing that the test of liability of the company is not verified due to an uncertain causality is not an operative plea.
2° objection : The victims argue that it follows from articles 17 and 29 that the convention is applicable only to damage claims based on death or physical injuries, however the first judge decided that it would apply to any form of damage claim.
Held : The court of appeal rightfully stated that even if the lawsuit were based on the disappearance instead of the death of the passengers [which alone is mentioned at article 17], article 29 of the Montreal Convention would apply at any action for damages.
3° objection : The victims criticise that pursuant to article 33.2 the court located the familiy's residence in Beijing: Firstly, the mother and children, having come to China only for the professional activities of the husband, had no intent to make Beijing the permanent and principal centre of interest. Additionnally, according to the victims, at the moment of the accident the familiy had only continued to live in Beijing in order to allow the children to finish the current school year; their stay was thus only temporary and transitory.
Held : With reference to article 33, the court of appeal establishes that according to the employer's certificate M. [J] has been living in China since 2007, that he was called back to Paris in January 2014 and that for familiy reasons related to the childrens' schooling, his family remained in China from where they were to return to France in june 2014. In light of the aforementioned, the court of appeal did not have to draw the alleged intent of return into consideration for to determine the principal residence, as any such intent of return would only pertain to the notion of domiciliation, not to that of residence. Thus it was able to determine the principal residence in the moment of the accident in Beijing. The objection is not well founded.
Interprétation
Firstly, the litigation concerns the French jurisdiction. The appeal criticises the application of the exclusive jurisdictional regime in the articles 33 and 29 of the convention. On one hand, it was defended that the accidental nature of the victims' death, allegedly necessary under article 33 § 2, could not be inferred by the simple disappearance of the aircraft; on the other hand, it was submitted that article 29 introduces an exclusive regime of courts jurisdiction restricted to damage claims based on the death or the physical injury of the passengers, not those based on their simple disappearance. The court rejects both arguments: The disappearance of an aircraft in the middle of the ocean equals the death of the passengers and constitutes an accident that justifies the liability of the carrier for the deaths.
Secondly, the appellants try to localise in Paris the permanent residence of the wife and the children, natives of Paris, all of them having followed the husband to Beijing for professional reasons. Allegedly, the localisation of the permanent residence presupposes the intent to hold a permanent establishment at a certain place. this would not be given in the present case where wife and children only accompany the husband, the more so as the return to Paris was already planned and as the familiy was only waiting for their children to finish the current school term. The court rejects these arguments. Contrarily to the notion of domicile, the notion of permanent residence does not require any intentional element; the simple de facto stay at a place is sufficient to localise the permanent residence at this place.
Finally, the first instance judgment is still annulled, but only for formal reasons.
Secondly, the appellants try to localise in Paris the permanent residence of the wife and the children, natives of Paris, all of them having followed the husband to Beijing for professional reasons. Allegedly, the localisation of the permanent residence presupposes the intent to hold a permanent establishment at a certain place. this would not be given in the present case where wife and children only accompany the husband, the more so as the return to Paris was already planned and as the familiy was only waiting for their children to finish the current school term. The court rejects these arguments. Contrarily to the notion of domicile, the notion of permanent residence does not require any intentional element; the simple de facto stay at a place is sufficient to localise the permanent residence at this place.
Finally, the first instance judgment is still annulled, but only for formal reasons.
Mot clés
Disappearance
death
principal residence
death
principal residence