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?

In matters of personal injury or death, Panama’s courts have not had the opportunity to provide an established doctrine on interpretation of any of the Conventions nor on the application of Panama’s Civil Aviation Law.

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?

Law 21 of 2003 regulates domestic aviation liability in Panama. In its article 151, it acknowledges that for international carriage Panama recognises both conventions. Consequently, any chosen Convention in a contract of international carriage will be respected by a Panama court.

Definition of ‘carrier’

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

The primary definition of ‘carrier’ is provided by Law No. 21 of 2003, which, in its drafting, is influenced by the Montreal and Warsaw Conventions. It extends to ground handling agents and other service providers when their services are provided within the airport confines.

For international carriers, Law 21, article 151 considers that liability will be subject first to the international Conventions recognised by Panama and Panama’s law will be applied in its defect. In the specific case of successive carriers, Law 21, in article 113, considers that transportation provided by several carriers successively will be considered as one single operation.

Panama’s courts do not have a defined test for the successive carriage but will consider the doctrine or interpretation provided by known academics or international case law.

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?

Panamanian courts have not had the opportunity to review the matter to create a precedent for its interpretation.

Article 138 of Law 21 establishes that the carrier is responsible for the harm or death of a passenger, including in the course of operations of embarking or disembarking, which is essentially what both Conventions contemplate.

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?

No court precedent exists on this matter that has reviewed any of the defences as per either of the Conventions. At present, there is a case against the state pending of resolution before the Supreme Court that may become a future reference on the matter.

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 legal obligations to advance payment to injured passengers or the family members of deceased passengers, except for the established limitation amounts set by Law 21 or the applicable international Conventions.

Civil courts may accept a carrier’s motion of a voluntary deposit in certain instances.

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?

Panama’s courts have not defined an interpretation of these articles; they would initially rely on the academic interpretations and international case law.

With regard to the doctrine of forum non conveniens, the Supreme Court has declared that Panama is not a party to the doctrine as per common law interpretations. However, by means of a decision from 2015, the Court declared it may be possible to hear cases when coming from abroad rather than be automatically dismissed when the claimant argues harm or damage has been suffered in a different jurisdiction.

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?

Law 21 acknowledges the same period of limitations in article 170 and courts may take into consideration whether the time limitation has been interrupted if brought as an argument by a claimant.

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?

Courts have not reviewed the matter and, consequently, will rely on international academic interpretations and international case law.