Air charter: understanding the contract and responsibilities

Perhaps you have already travelled on a charter flight for your holidays, or your company has organised a specific trip for a team. Behind these situations often lies a special contractual mechanism: air charter. Although common in the world of transport, this contract remains little known to the general public and even to some professionals. Yet understanding how it works is essential, because it involves specific obligations and raises complex questions about liability in the event of an incident.

What exactly is air charter? In simple terms, it is the provision of an aircraft with his crew. This precision is fundamental and distinguishes it from other contracts. But beyond this definition, how does chartering work in practice? What are the obligations of the party supplying the aircraft (the charterer) and the party using it (the charterer)? And above all, who is liable if damage occurs, whether to third parties, passengers or the goods being transported? This article aims to clarify these points so that you can better understand the issues involved in this contract.

Defining and distinguishing the air charter contract

French law provides a framework for air chartering, even if the regulations remain succinct compared with those for conventional carriers. It is therefore important to understand its legal nature to avoid confusion.

The key definition: an aircraft and its crew

The starting point is article L. 6400-2 of the French Transport Code. This text defines chartering as "the operation whereby a charterer places an aircraft with crew at the disposal of a charterer".. The distinguishing feature here is the presence of the crew (pilots, cabin crew) provided by the charterer. It is this joint provision of aircraft and crew that characterises chartering.

The same article specifies that, unless the parties agree otherwise, "the crew remains under the direction of the charterer".. This rule has important consequences, particularly for liability, as we shall see later. By default, the charterer retains technical and operational control of the flight.

The main forms: voyage chartering and time chartering

Although the law does not explicitly make the distinction, in practice, inspired by maritime law, there are two main forms of air charter:

• Travel charters : Here, the charterer makes its aircraft with crew available for one or more well-defined flights (for example, a Paris-Marrakesh round trip for a tourist group). The charterer generally retains full management of the operation, both nautical (safety, piloting) and commercial (flight organisation). The charterer buys a transport service for a given journey.
• Time chartering : In this case, the aircraft and its crew are made available for a fixed period (a few months or even several years). The charterer then has greater latitude to use the aircraft as required, within the limits of the contract. Management is often shared: the charterer retains nautical management (safety always comes first), but the charterer acquires commercial management, deciding on the flight schedule and destinations, and sometimes bearing certain direct costs.

This distinction affects the allocation of obligations and costs between the parties.

What chartering is not: differences with transport and leasing

It is essential not to confuse charter with two other common contracts in the airline industry.

• Chartering vs Contract of carriage : When you buy a traditional airline ticket, you are entering into a contract of carriage. The carrier undertakes to move you or your goods from point A to point B. The object of the contract is the journey itself. In the case of chartering, the main purpose is to make the vehicle available to you. capacity of the aircraft (all or part of it) with its crew. The charterer is not buying a seat, but the possibility of using the aircraft for his own needs (transporting his customers, staff or freight).
• Charter vs Lease : Aircraft leasing, defined in article L. 6400-3 of the French Transport Code, involves making an aircraft available without crew. This is often referred to as "bareboat" charter (or dry lease in English, as opposed to wet lease for charter). The hirer then assumes full responsibility for the operation of the aircraft, including the provision of crew and nautical management. The presence or absence of the crew provided by the owner is therefore the major distinguishing criterion.

These distinctions are important because they determine the applicable legal regime, particularly in terms of liability.

Understanding how the charter contract works

Like any contract, chartering creates rights and obligations for each party. Contractual freedom prevails, but certain obligations arise from the very nature of the transaction.

The commitments of the charterer (the party supplying the aircraft)

The charterer has fundamental technical and operational responsibilities. His main duties are to :

• Provide equipment that complies with regulations and is properly maintained: The aircraft provided must be perfectly airworthy, meet current safety standards and have all the required on-board documents. The charterer is responsible for the technical maintenance of the aircraft throughout the duration of the contract.
• Provide a competent crew: The crew provided must be qualified, hold the necessary licences and certificates and be capable of carrying out the flights planned. Unless otherwise stipulated, this crew remains under the hierarchical and technical authority of the charterer.
• Ensuring flight safety (nautical management) : The charterer, via his captain, retains ultimate responsibility for decisions relating to safety: itinerary, weather conditions, loading, possibility of diverting or cancelling a flight if necessary. The charterer must comply with these decisions.

Obligations of the charterer (the person using the aircraft)

The charterer is not just a passenger. His obligations vary according to the type of charter, but generally include :

• Pay the agreed price : The price can be fixed (per journey) or calculated on the basis of flight hours (on time), often with a guaranteed minimum.
• Use the appliance as agreed: The charterer must respect the use stipulated in the contract, not transport illegal or dangerous goods without authorisation, and comply with all applicable regulations.
• Manage the commercial aspect (especially for time charters): This can include defining the flight schedule, obtaining the necessary traffic authorisations, covering fuel costs, airport taxes, ground handling, etc.
• Respect boarding times (especially for charter trips): It is imperative that passengers or goods are presented at the agreed time. Delays may result in additional costs (demurrage) or even termination of the contract.

When things don't go as planned: non-performance and force majeure

As in any contractual relationship, unforeseen circumstances can arise. What happens if a flight is cancelled or delayed? Charter contracts generally include clauses to deal with these situations:

• Cancellation : Clauses may allow either party to terminate the contract under certain conditions, sometimes for a fixed fee.
• Force majeure : External, unforeseeable and irresistible events (extreme weather conditions, unforeseen general strike, closure of airspace, etc.) may exonerate the parties from liability for non-performance. Please note that the contractual definition of force majeure may vary.
• Limitations of contractual liability : Contracts often include clauses limiting liability between the shipper and the charterer in the event of a breach. It is essential to understand that these clauses are not, in principle, enforceable against third parties (passengers, shippers, victims on the ground) who have not signed the contract. They merely organise the distribution of the final cost of compensation between the two professionals.

In principle, any technical problem with the aircraft is the responsibility of the charterer, who must bear the consequences (repairs, search for a replacement aircraft if possible).

The complex issue of responsibility

This is undoubtedly the trickiest aspect of air chartering, as it potentially involves several players and different legal regimes. Who is liable in the event of an accident, major delay or loss of goods?

Who pays for damage caused by the aircraft to third parties?

Let's imagine that a chartered aircraft causes damage to another aircraft in flight, or to property and people on the ground (falling object, crash). Under French law, the main party liable is the aircraft operator.

• The principle of operator liability : Articles L. 6131-1 and L. 6131-2 of the Transport Code establish the operator's liability. For damage caused to third parties on the surface, this liability is automatic, i.e. it is not necessary to prove fault. Only the fault of the victim can mitigate or exclude liability.
• Who is the operator in the case of a charter? As the law does not define the operator, case law has focused on the concept of custody of the aircraft, characterised by powers of use, management and control. As the crew generally remains under the direction of the charterer (art. L. 6400-2 C. transp.), it is the charterer who retains nautical and technical management. This means that, the lessor is usually considered to be the operator and custodian of the aircraftand therefore as the party primarily responsible for damage caused to third parties.
• Possible shades : The question might arise differently if the damage is directly linked to a decision falling within the exclusive commercial management of the charterer (for example, the repeated choice of routes generating specific noise pollution). However, the primary liability of the charterer as the holder of technical control remains the principle.

Who is liable in the event of damage to passengers or goods?

The situation becomes more complicated when the damage concerns the "users" of the flight: injured passengers, lost or damaged baggage, destroyed or damaged goods. Often, these people have not contracted directly with the charterer, but with the charterer (travel agency, company, freight forwarder, etc.).

• This is often a complex process for victims: The passenger or sender may be faced with several potential interlocutors (the agency that sold the ticket, the airline whose name appears on the aircraft or ticket, etc.). Who should you take action against?
• Recourse against the charterer : Even if there is no direct contractual link, the victim can sometimes make a claim against the shipper:
  • If the freight forwarder is a contract carrier : This is the case if the passenger has issued the ticket or air waybill (AWB) in his name, or if the charterer has designated him as such on the document with his agreement. He is then subject to the rules of the contract of carriage, in particular the Montreal Convention of 1999 for international flights (and by legal extension for French domestic flights for goods, cf. art. L. 6422-2 C. transp.).
  • If the freight forwarder is a de facto carrier : The Montreal Convention (articles 39 et seq.) makes specific provision for cases where carriage is performed by a person other than the person who entered into the contract. If the charterer is the "contracting carrier" and has authorised the freight forwarder to carry out the flight, the latter becomes the "de facto carrier". The victim may then take action against either or both of them. Both are subject to the rules and limits of liability set out in the Convention.
  • On the basis of proven fault (extra-contractual liability) : If the above conditions are not met, the victim may still try to hold the charterer liable by proving fault on his part or that of his crew (pilot error, lack of maintenance, etc.) on the basis of articles 1240 and 1241 of the Civil Code, or as guardian of the aircraft (article 1242 of the Civil Code).
• Recourse against the charterer : The victim does, of course, have recourse against his own co-contractor, the charterer, but the nature of this recourse depends on the contract between them:
  • If the charterer is a contract carrier : As mentioned above, if the charter airline has sold the tickets in its own name, it is liable as a carrier, even if it subcontracts the flight to a charterer. It is subject to the Montreal Convention.
  • Travel agencies / tour operators : When a travel agency charters an aircraft to put together a package tour, it is generally not considered to be an air carrier. Its liability to the customer is governed by the specific rules of the Tourism Code, which provide for strict liability for the proper performance of all the services included in the package (including air transport). European Regulation (EC) No 261/2004 on passenger rights (compensation for cancellation, long delay, denied boarding) applies only to the "operating air carrier" (usually the freight forwarder) and not to the agency.
  • Freight forwarders : If a company entrusts its goods to a freight forwarder who charters an aircraft to transport them, the freight forwarder is liable to its customer under the rules of the commission contract (obligation of result for the arrival of the goods, but with specific limitations). He is not generally classified as an air carrier, unless his behaviour or the documents issued create a misleading appearance.

This diversity of situations and applicable legal regimes clearly demonstrates the need for a precise analysis in the event of a dispute.

The complexity of contractual relations and liability regimes in air chartering requires a careful analysis of each situation. Our team is at your disposal to help you secure your charter operations or defend your rights in the event of a dispute.

Sources

• Transport Code (in particular articles L. 6131-1, L. 6131-2, L. 6400-2, L. 6400-3, L. 6412-6, L. 6421-1 et seq., L. 6422-2)
• Civil Code (in particular articles 1240, 1241, 1242)
• Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999  
• Tourism Code (for travel agency liability)
• Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers.