Click here to download the Aviation liability 2020 report, published by Getting the Deal Through.

Jurisdictions covered

The following 21 jurisdictions are covered in this report:

Argentina; Brazil; Canada; China; France; Germany; Greece; Indonesia; Italy; Latvia; Malaysia; Netherlands; New Zealand; Nigeria; Panama; Portugal; Spain; Switzerland; Turkey; United Kingdom; United States.

Questions

The set of questions relating to the topic of aviation liability and answered by the guide for each jurisdiction covered include:

Applicable treaties

• • To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

International carriage — liability for passenger injury or death

• • Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?
• • Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?
• • In your state, who is considered to be a “carrier” under the Montreal and Warsaw Conventions?
• • How do the courts in your state interpret the conditions for air carrier liability — “accident”, “bodily injury”, “in the course of any of the operations of embarking or disembarking” — for passenger injury or death in art 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?
• • How do the courts in your state interpret and apply the “no negligence” defence in art 21 of the Montreal Convention, and the “all reasonable measures” defence in art 20 and the “wilful misconduct” standard of art 25 of the Warsaw Convention?
• • Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?
• • How do the courts of your state interpret each of the jurisdictions set forth in art 33 of the Montreal Convention and art 28 of the Warsaw Convention?
• • How do the courts of your state interpret and apply the 2-year period of limitations in art 35 of the Montreal Convention and art 29 of the Warsaw Convention?
• • How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Domestic carriage — liability for passenger injury or death

• • What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
• • What is the nature of, and conditions, for an air carrier’s liability?
• • Is there any limit of a carrier’s liability for personal injury or death?
• • What are the main defences available to the air carrier?
• • Is the air carrier’s liability for damages joint and several?
• • What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?
• • What is the time within which an action against an air carrier for injury or death must be filed?

Third-party actions

• • What are the applicable procedures to seek recovery from another party for contribution or indemnity?
• • What time limits apply?

Liability for ground damage

• • What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
• • What is the nature of, and conditions for, an air carrier’s liability for ground damage?
• • Is there any limit of carriers’ liability for ground damage?
• • What are the main defences available to the air carrier in a claim for damage caused on the ground?

Liability for unruly passengers and terrorist events

• • What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
• • What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?
• • Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
• • What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?
• • Summarise the laws or regulations related to the liability for injuries or damage caused by drones.

Consumer protection and passenger rights

• • Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

Liability of government entities providing services to carriers

• • What laws apply to the liability of the government entities that provide services to the air carrier?
• • What is the nature of, and conditions for, the government’s liability?
• • Are there any limitations to seeking recovery from the government entity?

Criminal proceedings

• • Can an air carrier be criminally responsible for an aviation accident?
• • What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
• • Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

Effect of carrier’s conditions of carriage and tariffs

• • What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

Damages

• • What damages are recoverable for the personal injury of a passenger?
• • What damages are recoverable for the death of a passenger?

Accident investigation and family assistance

• • Who is responsible in your state for investigating aviation accidents?
• • Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
• • Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Insurance requirements

• • Are there mandatory insurance requirements for air carriers?

Litigation procedure

• • Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
• • What is the nature and extent of allowable discovery/disclosure?
• • Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
• • Are attorneys’ fees and litigation costs recoverable?

Judgments and settlement

• • Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
• • Is court approval required for settlements?
• • What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?
• • Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?