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Applicable treaties

Major air law treaties

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

Indonesia has ratified and is therefore bound by the following conventions concerning international carriage of passengers, baggage and cargo by air:

  • Convention on International Civil Aviation, Chicago 1944, as ratified by Indonesia when becoming a state party to the International Civil Aviation Organization;
  • Convention for the Unification of Certain Rules relating to International Carriage by Air, Warsaw 1929, as ratified by Air Carrier Ordinance No. 100 of 1939;
  • Convention on Offences and Certain Other Acts Committed on Board Aircraft, Tokyo 1963, as ratified by Law No. 2 of 1976;
  • Convention for the Suppression of Unlawful Seizure of Aircraft, the Hague 1970, as ratified by Law No. 2 of 1976;
  • Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal 1971, as ratified by Law No. 2 of 1976;
  • Convention on International Interests in Mobile Equipment, Cape Town 2001, as ratified by Government Regulation No. 8 of 2007; and
  • Convention for the Unification of Certain Rules for International Carriage by Air, Montreal 1999, as ratified by Presidential Decree No. 95 of 2016.

International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

To date, there has been no change in the status on the judicial decisions that have been awarded based on the Montreal Convention 1999.

With regard to the implementation of Warsaw Convention, it is important to note that Indonesia does not recognise a stare decisis doctrine. Consequently, a judge has no obligation to follow a previous decision in a similar case; however, according to court precedence, the court has consistently enforced the Warsaw Convention. One remarkable case to date is 1517K/Pdt/2009 dated 9 April 2009 between Singapore Airlines v Sigit Sucahyono (Case 1517), in which the court agreed that the compensation amount is not limited where the accident is caused by wilful misconduct of the carrier.

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?

As there is no court decision based on the Montreal Convention to date, we can only refer to Case No. 1517, which was decided based on the Warsaw Convention (see question 2). In this case, we can only state that Indonesian courts recognise the existence of international conventions to regulate on air carriers’ liability for passengers’ injury or death.

However, if the international carriage is performed by the domestic carrier, the law that applies is the Indonesian Law No. 1 Year 2009 (Indonesian Aviation Law) regarding Aviation (Indonesian Aviation Law), which is further regulated under the Ministry of Transportation Regulation No. 77 of 2011 on the Liability of Air Carriers (MoTR No. 77/2011), which states that an air carrier will be liable for damages for, among other things, death, permanent disabilities or injuries. It should be noted that the laws only apply to incidents occurring in the airspace above the territory of Indonesia.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

In Case No. 639/Pdt.G/2008/PN.Jkt.Sel between Dono Indarto and Emirates Airlines, the court applied the Warsaw Convention to the case involving an international carriage, which is defined as any carriage whose place of departure, destination and where the contract made is situated within territories of two countries.

There is no precedent where the court extends the term of ‘carrier’ to include ground handling agents.

Carrier liability condition

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 article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

In Case No. 908/Pdt.G/2007/PN.Jak.Sel between Singapore Airlines and Sigit Suciptoyono, the passenger brought a claim against the carrier, Singapore Airlines, after experiencing a bodily injury in an accident during a flight. The bodily injury claim was supported with evidence of a visum or a testimony from the hospital, the transcript of the black box and the results of the investigation of the flight accident.

The court referred to article 17 of the Warsaw Convention and deemed that the plaintiff had fulfilled the elements for a bodily injury - namely, the existence of an injury and the occurrence of such an injury in the carrier or during the operations of embarking or disembarking.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

In Indonesia, the court has never applied the ‘no negligence’ defence, it has only applied the wilful misconduct standard. In Case 1517, the court considered that Singapore Airlines had committed wilful misconduct since the pilot in charge did not follow the instruction from the flight authority in Taiwan, which at that material time prohibited the pilot in charge from landing the aircraft on a runway that was under maintenance.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

There are no regulations in Indonesia requiring advanced payment to be made to injured passengers or family members of deceased passengers.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

The court’s interpretation of article 28 of the Warsaw Convention can be seen in Case No. 639/Pdt.G/2008/PN.Jkt.Sel and Case No. 908/Pdt.G/2007/PN.Jak.sel, in which the action for damages may be brought in:

  • the territory of the parties;
  • the place of business of the carrier;
  • the place of business where the contract has been made; or
  • the place of destination.

In the case, since the domicile of the carrier Emirates is in the United Arab Emirates, and the destination is Jakarta, Indonesia, the district court of Jakarta assumed jurisdiction to adjudicate the case.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

Indonesia applies the two-year period limitation for the passenger to file a lawsuit for damages. However, an exception was applied in Case 1517 that although the accident occurred in 2000, the claim was submitted and accepted in 2007. According to the national law, the claim has been time-barred, yet the court ruled that it may still be accepted because Sigit (the plaintiff) had previously filed the claim before the United States District Court for Central District of California and the High Court of the Republic of Singapore. Hence, albeit that there is such provision regarding the period of limitation, the two-year period of limitation is considered to still be subject to tolling and may be extended to a certain extent. It serves as a reminder, however, that Indonesian courts do not recognise stare decisis doctrine, and consequently, there may be a possibility that Indonesian courts could grant otherwise.

Liability of carriage

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?

To the best of our knowledge, there have never been any previous court decisions in this regard.

Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The applicable provisions for passenger injury or death occurring during domestic carriage are provided in the Indonesian Aviation Law and its implementation regulation, the MoTR No. 77/2011.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

In Indonesia, an air carrier is subject to strict liability under the Indonesian Aviation Law.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

The air carrier’s liability for personal injury or death is limited to the amounts stipulated under the law, specifically MoTR No. 77/2011 and to a time limit determined to commence a claim against it. Article 177 of the Indonesian Aviation Law provides that the maximum time limit for the initiation of a legal claim should be within two years from the date on which the baggage is supposed to have arrived at the destination. The elucidation of the law extends such regulation to also include losses in the form of death or injury.

The amount of compensation that should be paid by an air carrier operating domestic carriage in the event of loss is governed by MoTR No. 77/2011 and is as described below.

Legal basis

Damage

Compensation

Article 3 of MoTR No. 77/2011

Death of passenger on air transportation

1.25 billion rupiahs per passenger

Death of passenger boarding or disembarking an aircraft at an airport

500 million rupiahs per passenger

Total permanent injuries

1.25 billion rupiahs per passenger

Injuries and hospitalisation

200 million rupiahs per passenger

Article 5 of MoTR No. 77/2011

Missing, destroyed or damaged luggage (that is listed)

From 200,000 rupiah per kilogram per passenger up to 4 million rupiahs

Article 7 of MoTR No. 77/2011

Missing or destroyed cargo

100,000 rupiahs per kilogram

Partly destroyed cargo or cargo contents

50,000 rupiahs per kilogram

 

Main defences

What are the main defences available to the air carrier?

For liability of lost or damaged baggage, the carrier will not be deemed responsible if it can prove that the loss is not caused by the action of carrier or people employed by the carrier.

For liability cause by damages due to delay, the carrier will be exempted from any liability if it can prove that the delay is caused by weather conditions or technical operations conditions.

Technical operations conditions include factors such as:

  • the airport for the departure and arrival cannot be used for the air carrier operation;
  • the surroundings near the airport is experiencing issues such as flooding or fire;
  • there is a long queue for take-off, landing or during the departure slot time; and
  • refuelling.

Weather conditions include conditions such as:

  • rainstorms;
  • flood;
  • thunderstorms;
  • hurricanes;
  • fog;
  • smoke;
  • visibility is below the minimal standard; and
  • the wind velocity exceeds the maximum standard and has the potential to affect flight safety.

 

Damages

Is the air carrier’s liability for damages joint and several?

The air carrier’s liability is limited to the damages incurred.

Rule for apportioning fault

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?

According to the law, namely article 141 of the Indonesian Aviation Law, the carrier is only liable for indemnity for the death of passengers or defects or injuries caused by incidents on board the aircraft or while getting on or off the aircraft if they are due to the intentional action or fault of the carrier or any of its employees.

The air carrier’s liability for personal injury or death is limited to the amounts stipulated under the law, specifically MoTR No. 77/2011.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

As conveyed in questions 9 and 13, the time limit to file a legal action to claim for injury or death is two years from the date the luggage is supposed to arrive. The law is silent regarding whether or not it is subject to tolling although Case 1517 made an exception to the time limit. Also based on precedence, in the case between Willem Tabuni et al v Pilatus Aircraft Limited et al in 2012, the court considered the action to have commenced right after the accident occurred. Further, the court did not consider the out-of-court negotiations as the action that could toll the statute of limitation.

Third-party actions

Seeking recovery

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

The Indonesian Aviation Law provides a legal basis for any carrier to claim a third party causing the damages or loss suffered by the passengers, shippers or cargo beneficiaries that are the carrier’s liability. However, the law is silent regarding the procedures for seeking such recovery.

Time limits

What time limits apply?

The Indonesian Aviation Law is silent regarding the time limit for such claim, thus the time-limit principle in the Indonesian Civil Code, which is 30 years, will apply.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

There is no specific provision on injury or damage caused to persons on the ground by an aircraft accident. However, if this occurs, the provisions regarding liability of the carrier towards third party will be applied.

Nature and conditions of liability

What is the nature of, and conditions for, an air carrier’s liability for ground damage?

Strict liability.

Liability limits

Is there any limit of carriers’ liability for ground damage?

As mentioned above, there is no specific provision on injury or damage caused to persons on the ground by an aircraft accident. However, if this occurs, the provisions regarding liability of the carrier towards third party will be applied.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

Pursuant to article 19 of MoTR 77/2011, a carrier is not liable to pay compensation if it can prove that the incident is not a result of fault or negligence of the carrier or the people it has employed or its agents, and if the incident is caused solely by the fault or negligence of the passenger or third party.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

Under Indonesian Aviation Law, there is no such provision concerning the liability of the air carrier for injury or death caused by unruly passenger or a terrorist event. The liability in the case of an unruly passenger or a terrorist event is imposed on the individual.

Nature and conditions of liability

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?

Even though Indonesian Aviation Law does not provide the conditions for an air carrier’s liability for injury or death caused by unruly passenger or a terrorist event, one may file a claim for injury or death passenger on tort basis. If the air carrier is proven to be at fault, then the air carrier might be held liable by the court.

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

Not applicable.

Main defences

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?

Not applicable.

Consumer protection and passenger rights

Applicable legislation

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

Pursuant to Law No. 8 of 1999 Concerning Consumer Protection (the Consumer Protection Law), there are several passenger rights, which are:

  • the right to obtain comfort, security and safety in using or consuming goods or services;
  • the right to choose the goods or services in accordance with the promised conversion value and condition as well as the warranty;
  • the right to obtain correct, clear, and honest information regarding the condition and warranty of the goods or services;
  • the right to be heard in expressing opinion and complaints on goods or services they use or consume;
  • the right to obtain proper advocacy, protection, and settlement in the consumer’s protection dispute;
  • the right to obtain consumer’s training and education;
  • the right to receive proper and honest and non-discriminatory treatment or services;
  • the right to obtain compensation, redress or substitution, if the goods or services received are not in accordance with the agreement or not received as requested; and
  • the right to obtain rights as regulated in the other provisions of the law.

Any dispute arising under Consumer Protection Law is settled through the Consumer Dispute Resolution Body.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

Besides having authority to issue aviation-related licence and as a regulator, the Indonesian Aviation Law sets out liability of government to provide services to the air carrier, among others, as airport authority and navigation services provider.

As for the airport operator, the Indonesian Aviation Law provides that the entities that can be an airport operator are state-owned enterprise, regional government-owned enterprise, and private companies in the form of limited liability companies.

Further, article 271 of Indonesian Aviation Law stipulates the liability of the government entities to provide services to the air carrier, which states that the government shall be responsible for providing flight navigation services for the operating aircraft. The scopes of navigation services are:

  • air traffic services;
  • aeronautical telecommunication services;
  • aeronautical information services;
  • aeronautical meteorological services; and
  • search and rescue.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

Article 240 (1) of Indonesian Aviation Law provides a legal basis for liability of an airport operator towards the damages of the airport user including death, injury, loss of equipment or environmental damages. The nature of, and condition for, the government’s liability is strict liability. Further, the Indonesian Aviation Law states that the liability of the airport operator will be further regulated by the Minister of Transportation Regulation. However, up until now, the said regulation has not yet been enacted.

Liability limits

Are there any limitations to seeking recovery from the government entity?

Generally, every action and decision taken or made by the government entity should comply with the prevailing laws as well as General Principles of Good Governance as stipulated under Law No. 30 of 2014 regarding Government Administration.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

Yes, the corporate crime principle is applied under article 441 of the Indonesian Aviation Law. One of the provisions that might be imposed against the air carrier are articles 411 and 412 of the Indonesian Aviation Law. Those articles stipulate that anybody who operates the aircraft which is intentionally endangering the safety of the aircraft; or any individual on board an aircraft conducting any wrongdoing that may endanger aviation safety can be imposed to the air carrier.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

Pursuant to Supreme Court Regulation No. 1 of 1956 and Supreme Court Circular Letter No. 4 of 1980, a criminal proceeding can be suspended if there is a civil action that should be decided first by the court.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

Compensation claim by passenger or their representatives can be made against the air carrier through civil action. However, the civil action can be taken during the criminal proceedings in the same trial as stipulated under article 98 of the Indonesian Criminal Procedure Code, which allows a victim to sue for a compensation for the loss arising from the crime.

Effect of carrier's conditions of carriage and tariffs

Liability

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

If the carrier’s condition is contrary with the prevailing law, then the said law will prevail.

Damages

Damage recovery

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

The damages are recoverable for the personal injury of a passenger if such physical injury of human being is a result of the air carrier operation. Punitive damages are allowed in this matter. The injured passenger is the person who has standing to claim and becomes the beneficiary of the punitive damages. Pursuant to article 3 of MoTR No. 77/2011, the amount of compensation that will be paid by an air carrier in the event of the death passenger is as follows:

  • compensation for total permanent injuries amounts to 1.25 billion rupiahs per passenger; and
  • compensation for injuries and hospitalisation amounts to 200 million rupiahs per passenger.

What damages are recoverable for the death of a passenger?

The damages are recoverable for the death of passenger if such death is a result of the air carrier operation. Punitive damages are allowed. The heir of the passenger who died has standing to claim and becomes the beneficiary. Pursuant to article 3 of MoTR No. 77/2011, the amount of compensation that shall be paid by an air carrier in the event of the death passenger is as follows.

  • compensation for the death of a passenger on air transportation is a 1.25 billion rupiahs per passenger; and
  • compensation for the death of a passenger boarding or disembarking an aircraft at an airport is 200 million rupiahs per passenger.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

The National Transportation Safety Committee is responsible for investigating aviation accidents.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

Pursuant to the explanation of article 359, paragraph (2) of the Indonesian Aviation Law, there are several accident-investigation reports that cannot be disclosed to the public, which are:

  • statements from the investigated persons;
  • communication recording or transcript between people who are engaged in aircraft operations;
  • information on health or personal information from people who are involved in the accidents or incidents;
  • voice recording in the cockpit (cockpit voice recorder) and its transcript;
  • recording and transcript of air traffic services conversations; and
  • opinions expressed in the information analysis including the flight data recorder.

The aviation accident investigation reports above also cannot be used as an evidence in court proceedings.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

At this juncture, the regulations addressing the provision of assistance to passengers and their family after an aviation accident is only for the accident that occurred within and nearby (maximum 8km) the airport area. It is regulated under the General Director of Aviation of Ministry of Transportation No. KP.378 of 2001 on the Airport Emergency Plan Document. Based on the said regulation, assistance for passengers and their family, among other things, includes:

  • establishing an emergency crisis centre;
  • providing passenger data;
  • establishing a conference room; and
  • establishing a meet-and-greet room.

In addition to the above, in best practice, when aviation accident occurs there are also other forms of assistance toward the passenger or family of the passenger, namely provision of psychologist to give free consultation (this service is provided by the carrier or volunteer), flight services, hotel, shuttle to the emergency crisis centre and any other accommodation.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Yes, the insurance requirements are mandatory for air carriers based on article 62 of the Indonesian Aviation Law.

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

The court structure in Indonesia is stipulated under Law No. 49 of 2009 regarding the General Court (General Court Law). Based on General Court Law, the district court is the court of first instance that examines and review the facts and law from both the plaintiff and defendant’s submission. The district court decision can be appealed to the High Court. Similar to the district court, both law and facts presented by the plaintiff and defendant will be reviewed by High Court judges. The losing party in High Court can seek cassation from the Supreme Court. The Supreme Court judges will only review law-related issues. The Supreme Court decision is final and binding. However, there is an extraordinary legal remedy, which is a civil review. A petition for civil review will not suspend the enforcement of the court’s judgment.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

There is no provision regarding the discovery or disclosure under Indonesian procedural law.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

No, there is no regulation concerning the preservation and spoliation of evidence.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

Pursuant to article 379 of the Indonesian Civil Procedure Law, the attorneys’ fees are not recoverable. However, the court fees are usually imposed by the judges on the losing party of such dispute.

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

Indonesia does not impose pre-judgment or post-judgment interest.

Settlements

Is court approval required for settlements?

No, the court approval is not required for settlements. However, if the settlement occurs inside the court (by submission of a claim), the judge will confirm the settlement deed through a decision on the settlement. This settlement deed resembles a final and binding court judgment that cannot be appealed.

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?

It may be pursued since the settlement agreement only bound to the parties who sign the agreement. This condition is based on article 1340 of the Indonesian Civil Code, which states that an agreement applies only to the parties who enter into it.

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?

One of the most important things before proceeding with the delivery of compensation to the passenger or his or her heirs is to ensure that the beneficiary is the rightful person according to the relevant regulation related to the Heritage Law.