La Corte di Cassazione italiana si pronuncia sulla distribuzione del carico probatorio in relazione alla responsabilità del vettore aereo per ritardo e ai fini della compensazione pecuniaria di cui al Reg. CE n. 261/2004

Luca Ancis

2018-01-01

---

Abstract

The Italian Court of Cassation expresses its point of view on air carrier liability for delay. Applying a general principle elaborated since 2001, the Court has established that the passenger must provide proof of the contract and of the damage suffered as a result of the loss of time. He can, instead, simply report the delay and its duration. On the other hand, the carrier must demonstrate a regular transport, or its impossibility due to reason beyond his control. According to the Italian Supreme Court, the Montreal Convention System and the Reg. (EU) n. 261/2004 dictate absolutely parallel rules, so that in both cases the carrier may, in any case, avoid compensation simply by proving the causal connection between the delay and the unforeseeable circumstances or force majeure. In this decision it is therefore possible to identify two distinct parts. The first one, concerning the lack of burden on the passenger to prove the delay, is perfectly acceptable. The same consideration cannot be made for the second one, characterized by questionable reflections on the exonerating proof of the carrier and on the legal nature of the right to compensation under Art. 7 Reg. (EU) n. 261/2004.