On April 2, 2008, plaintiff had filed a claim for compensation under Reg. (EC) 261/2004 because of cancellation of his scheduled flight from FRA to PMI on Nov. 19, 2005. The statement of claim had been delivered to defendant on May 5, 2008.Both, first instance court (AG Rüsselsheim) and court of appeal (LG Darmstadt) dismissed the claim. Court of appeal argued that Reg. 261/2004 did not contain any statute of limitation. This loophole had to be filled by applying the limitation period of Art. 35 Montreal Convention as Reg. 261/2004 was supplementing the Convention with regard to passenger rights. As plaintiff’s law suit had missed this limitation period, the claim had to be dismissed.In judgement Xa ZR 61/09 of Dec. 10, 2009 German Supreme Court rejected application of the limitation period under the Montreal Convention: Montreal did not cover cancellation and the compensation under Reg. 261/2004 was not a claim for damages in the meaning of Art. 19 and 29 Montreal Convention. Though Reg. 261/2004 was supplementing the Convention, the two legal acts did not constitute a consistent legal system. Therefore not Montreal but the limitation period under national law was applicable.Supreme Court thus repealed the judgement remanding the case to the court of appeal.Judgement Xa ZR 61/09 of Dec. 10, 2009 available in German here>>.
