Many of us understand the idea of claiming compensation as a result of a road traffic accident. However, do we know how to claim for personal injury or death in the unlikely event of an aviation accident in Spain?
Preliminary Investigations
When an airplane accident happens within the Spanish territory, the authorities and the Criminal Court open what is called “Diligencias Previas de Investigación” or the preliminary investigations stage. This is the first step in the investigations where all the relevant information linked to the accident is collected. This should therefore include information about the victims, extent of the damage, details of the the airplane´s owner, carrier, pilot, crew, conditions of the area where the accident occurs and many other aspects crucial to draw the full picture surronding the accident.
The aircraft will then be sealed and examined by the technical experts. If possible, the “black box” is also retreived as it usually contains vital evidence to help determine the cause of the accident.
In Spain, the CIAIAC (Commission of Investigation of Civil Aviation) will prepare a technical report for the Court. However, this report will deal with issues exclusively from a technical point of view and does not have the purpose of establishing the liability for the accident.
During the involvement of the CIAIAC, the investigations will not be made public until the report is finalised and presented in Court. It is, therefore, extremely important that the victims are correctly represented in Court from the outset in order to ensure that all the necessary steps are taken to establish the cause of the accident and whether fault or negligence was involved.
The Montreal Convention
The Convention for the Unification of Certain Rules for International Carriage by Air (The Montreal Convention), establishes the “Responsabilidad Objetiva”, a strict liability system, for air disasters claimants. Under this convention, the carrier will be liable for any damage caused to the passengers including death or injury. This is upon the condition that the accident which caused the death or injury took place on board of the aircraft or in the course of embarking or disembarking.
The Montreal Convention of 1999 therefore introduced a uniform legal framework to govern air carrier liability in the event of damage caused to passengers, baggage or goods during international journeys.
At European Community level, and to ensure a uniform system, Regulation (EC) No 2027/97 imposed unlimited liability on European air carriers in the event of death or injury to passengers. This Regulation was further amended by Regulation (EC) No 889/2002, which applies the rules of the Montreal Convention to all flights, whether domestic or international, operated by European air carriers.
Regulation (CE) n° 889/2002 therefore establishes that the distinction between domestic and international transport will be eliminated establishing the same level of liability in both international and domestic transport within the European Community.
The provisions of the Montreal Convention regarding compensation are inverted into the Spanish legal system by the ‘Ley de la Navegación Aerea’. This is the Spanish Carriage by Air Act that regulates accidents occuring during internal flights within the Spanish territory.
The Spanish Carriage by Air Act, in its articles 116 and 120, introduces the strict liability system for aviation accidents during internal flights.
In this line, the Spanish Carriage by Air Act establishes that the carrier shall be responsible for any damage caused during the flight including death or injury to the passenger.This applies up to the limits set in the Act, based on the strict liability of the carrier, even in the case of a forituitus accident and even when the carrier has proven that he has acted with all the due diligence.
The compensations based on strict liability tset in this law are as follows:
- Death or absolute permanent incapacity: up to 100.000 Special Drawing Rights, approx. 135,000 Euros.
- Partial permanent incapacity: up to 58.000 Special Drawing Rights
- Temporary partial incapacity: up to 29.000 Special Drawing Rights
The strict liability set above is combined with a libility for fault or negligence set in article 121 of the Spanish Carriage by Air Act.
According to article 121 of the Spanish Carriage by Air Act, the carrier will not be subject to the limits set in the above points if it is found that the damage was due to the negligence or other wrongful acts of the carrier or its employees. Where this occurs the carrier could be liable for higher unlimited compensation payments.
In this sense, the diligence and care expected from the carrier are such that complying with the applicable regulations would not be sufficient to avoid liability as ruled by the Spanish Supreme Court on 10 June 1988.
When the wrongful act, negligence or omission of a third party is established, those responsible for the crash should then reimburse the carrier for the compensation paid ‘up front’ to the victims. Furthermore, the victims could then claim higher amounts against the third party responsible for the accident.
For compensations resulting from aviation accidents where the place of departure and the place of destination of the carriage are the same and do not involve the transport of passengers between two different places, carriers of these flights will be liable for any damage caused to the passengers. This includes death or injury, upon the condition that the accident which caused the death or injury took place on board of the aircraft or in the course of any of the operations of embarking or disembarking. Compensations are calculated in the same way as described for internal flights.
There is also the possibility of accidents affecting an international flight within the Spanish territory. In the case of an international flight, possibly carrying multinational passengers, where the carrier’s registered office is not in the country where the accident occurs, the Montreal Convention gives various possibilities as to the applicable jurisdiction that will need to be fully explored.
Therefore, an action for damages will be brought, at the option of the Claimant, in the territory of one of the States Parties. This will occur either before the Court of the carrier’s residence or of its principal place of business, or where it has a place of business through which the contract has been made or before the Court at the place of destination.
In respect of damages resulting from the death or injury of a passenger, an action may also be brought before the Courts in the territory of a State Party in which at the time of the accident the passenger has their permanent residence and to or from which the carrier operates services for the carriage of passengers by air and in which that carrier conducts its business of carriage of passengers by air.
If any of your clients has been affected by any of the issues discussed in this article our team can provide full advice and guidance on the specific circumstances affecting their case. Please contact us on on 0034 952 209 860 or email imabogados@irwinmitchell.es