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Major air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
The major air law treaties related to carrier liability for passenger injury or death in Portugal are:
- Warsaw System based on the Warsaw Convention of 1929 (ratified on 20 March 1947) as amended by the Hague Protocol of 28 September 1955 (ratified on 16 September 1963);
- Guadalajara Supplementary Convention signed in 1961;
- Montreal Agreement of 1966;
- Guatemala City Protocol of 1971; and
- Montreal Protocols Nos. 1, 2, 3 and 4.
Portugal has also ratified the Tokyo Convention of 1963 (in 1964) and the Montreal Convention of 1999 (on 27 November 2002).
There is implementing legislation in place in order to apply these treaties.
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?
Yes, although in the Warsaw Convention, the liability of the air carrier is based on a system of strict liability, up to the limits stipulated by article 22. However, should the air carrier prove that it has taken all the necessary measures to prevent injury (article 20), the air carrier can have its liability reduced or eliminated in cases of (contributory) fault of the injured party. In these circumstances, the burden of proof will rest with the air carrier (article 21). The injured party must prove the wilful misconduct of the carrier for limits under the Convention to be waived (article 25).
The Montreal Convention, on the other hand, limits liability for damage caused in the event of death and personal injury of passengers to 113,100 special drawing rights (SDR). However, where claims exceed this amount, the air carrier will not be liable if it proves that it was not negligent or otherwise at fault.
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?
Yes. However, in order to have a more comprehensive approach to air carrier liability for passenger injury or death, it would be necessary to consider other pieces of legislation (national or international).
Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
An air carrier is an air transport undertaking with a valid operating licence or equivalent to provide air services by transporting persons, luggage, cargo or mail in such an aircraft.
Ground handling agents and other service providers are not included within the term ‘carrier’. The activity carried out on land, with the exception of the check-in and entry into the airplane, is carried out through entities other than carriers.
The designation of successive carriage is related to the number of carriage operations included in the contract of carriage. Successive air transport is considered to be a ‘global’ operation consisting of the intervention of several carriers, by air, but aimed at a single final destination. Each individual part of the overall route is the responsibility of the operating carrier. It will be deemed to be unique and undivided if it has been so agreed by the parties, irrespective of whether there is more than one contract and even if there is a joint ticket.
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?
The meaning of ‘accident’ can be deduced from the Chicago Convention of 7 December 1944 (ratified on 28 April 1948), Annex 13, Regulation (EU) No. 996/2010 of the European Parliament and of the Council of October 2010 on the investigation and prevention of accidents in civil aviation and repealing Directive 94/56/EC and Decree-Law No. 318/99 of 11 August. An accident must result from a risk inherent to the development of the air transport activity. In this way, an accident is: an event related to the operation of an aircraft between the time a person embarks with the intention to fly and the time when all persons who embarked have landed; and from which, in general, death or serious injury, serious and structural damages of the aircraft could result or as a result of which the aircraft could disappear or become unavailable.
The ‘bodily injury’ condition refers to a consequence of the accident, a physical injury, other than death, which may be serious or less significant and that is not pre-existing or unrelated to the accident.
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?
There are two opposing schools of thought regarding the allocation of the burden of proof under article 25. On the one hand, according to Portuguese Civil Code 342(1), the burden of proving negative facts (‘no negligence’) should not be demanded from the air carrier, but rather be on the injured party, in order to be entitled to compensation.
On the other, the facts leading to exclusion of the air carrier liability or to its limitation constitute, respectively, facts that exclude or reduce the injured party rights. Should the air carrier oppose facts that support the injured party’s rights, it is for the air carrier to prove the facts concerning the exoneration and limitation of liability (Portuguese Civil Code, article 342(2)).
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?
Yes, in accordance with Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002, amending Council Regulation (CE) No. 2027/97 on air carrier liability in the event of accidents, the Community air carrier will make advance payments to meet immediate economic needs within 15 days in the case of death or injury.
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?
In relation to the jurisdictions, the determination of the competent jurisdiction will not always be the law of the passenger’s domicile or permanent residence.
The admission of the fifth jurisdiction was based on the concern regarding the interpretation of the domicile or residence of the claimant and the establishment of the air carrier.
Although the jurisprudence on this matter is limited, it is important to note that Portugal does not recognise the doctrine of forum non conveniens.
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?
According to the Portuguese Constitution, the international conventions of which Portugal is a party have priority over and above domestic legislation. As the Warsaw and Montreal Conventions are regularly applied in Portugal, the Portuguese courts interpret the two-year limitation period as it is stipulated in the Montreal Convention - namely, the claim may be issued up to two years after: the date of the arrival at the final destination; the date on which the aircraft should have arrived; or the date on which the carriage was interrupted.
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?
In relation to air transport carried out by an entity other than the contracting air carrier, both the contracting carrier and the actual carrier will be liable for the air carriage. However, the actual carrier will be liable only in respect to the carriage performed while the contracting carrier will be liable for the entire carriage.
Code sharing requires prior authorisation from the National Civil Aviation Authority (ANAC).
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?
The applicable laws and regulations governing liability are Council Regulation (EC) No. 2027/97 of October 1997 as amended by Regulation (EC) No. 889/2002 of European Parliament and of the Council of 13 May 2002 on air carrier liability in the event of accidents and Decree-Law 321/89 of 25 September as amended by Decree-Law No. 279/95 of 26 October as amended by Decree-Law No. 208/2004 of 19 August and the general rules established in Portuguese Civil Code.
Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
Decree-Law No. 321/89 of 25 September, as amended by Decree-Law No. 208/2004 of 19 August, states that the regime of strict liability will be applied to the air carrier.
However, in order for the carrier to be liable, certain conditions must be fulfilled:
- the existence of a contract of carriage;
- the occurrence of an accident that takes place on board the aircraft or in the course of any operation of embarking or disembarking; and
- the existence of damages - death or physical injury and the existence of a causation.
Is there any limit of a carrier’s liability for personal injury or death?
In terms of Council Regulation (EC) No. 2027/97 as amended by Regulation (EC) No. 889/2002, strict liability exists in respect of damage for passenger injury or death up to 113,100 SDR. If the carrier proves that the damage was not because of its negligence, its wrongful act or omission or its servants or agents or if the carrier proves that damage was only owing to the negligence or other wrongful act or omission of a third party, the air carrier will not be liable for damages in respect of passenger death or injury over and above this limit..
What are the main defences available to the air carrier?
Under the Montreal Convention, and Regulation (EC) No. 2027/97 as amended by Regulation (EC) No. 889/2002, the main defences available to the air carrier are proving that the damage was owing to or contributed to by the negligence of the injured or deceased passenger. Another possible defence is for the air carrier to prove that the damages were not caused by negligence or other wrongful act or omission of the carrier or its servants or agents but that the damage had been caused by negligence or other wrongful act or omission of a third person.
Is the air carrier’s liability for damages joint and several?
Yes, the air carriers are jointly and severally liable.
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?
Under article 20 of the Montreal Convention, the liability of an air carrier will be wholly or partly excluded to the extent that the damage was caused or contributed to by the claimant.
Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
According to Regulation (EC) No. 889/2002 of 13 May amending Regulation (EC) No. 2027/97, the limitation period for any legal action for claiming compensation on damages is two years from the date of arrival of the aircraft or from the date on which the airplane should have arrived.
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
The applicable procedures are an action for damages against the party, by whose act or omission, has given them origin or cause. If the accident is caused by more than one party, the obligation to pay compensation is joint and several.
What time limits apply?
In accordance with Regulation (EC) No. 889/2002, 13 May, the time limits for bringing claims is two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
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?
The applicable laws are the Portuguese Civil Code and Decree-Law No. 321/89 of 25 September as amended by Decree-Law No. 208/2004 of 19 August. According to this legislation, when it concerns ground damage both the owner and the aircraft operator will be liable . The Warsaw and Montreal Conventions are also applicable.
Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
The owner and the aircraft operator will be liable regardless of fault. Nonetheless, the owner and the aircraft operator will not be liable for damages in cases of natural disasters, armed conflict or use of weapons or explosives by third parties. There will also be no liability for the owner and the aircraft operator if the accident is owing to the sole fault of the injured party.
Is there any limit of carriers’ liability for ground damage?
Yes. The maximum overall amount, regardless of the number of casualities, will be annually fixed by government legislation. Although the minimum limits will be variable, these will also be established by the same legislation. There will be no limit of liability if it is proven that the damage was caused by the negligent act or omission of the owner or the aircraft operator.
What are the main defences available to the air carrier in a claim for damage caused on the ground?
The air carrier’s liability may be removed or mitigated if it can be shown that the cause or contribution to the damage was owing to the negligence, wrongful act or omission of the injured party.
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?
With regard to injury or death caused by an unruly passenger or a terrorist event, Decree-Law No. 254/2003, 18 October on prevention and prosecution of unlawful acts as amended by Decree-Law No. 208/2004 of 19 August, Decree-Law No. 10/2004 of 9 January and the Portuguese Criminal Law, Decree-Law No. 321/89 of 25 September as amended by Decree-Law No. 208/2004 of 19 August and the Montreal Convention apply.
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?
If the event is classified as an accident then the air carrier will be strictly liable for injury or death under the Montreal Convention regime, unless the air carrier is able to successfully proves one of the defences mentioned in question 14.
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
See question 13.
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?
See question 14.
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.
The consumer protection laws or regulations related to aviation in Portugal are the Portuguese Civil Code, Consumer Protection Law No. 24/96, 31 July and Decree-Law No. 156/2005, 15 September as amended by Decree-Law No. 371/2007, 6 November. In addition, 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 in the event of denied boarding and of cancellation or long delay of flights, and Decree-Law No. 209/2005, 29 November which established the penalties for infringements of the Regulation.
Additionally, Regulation (EC) No. 1107/2006 of the European Parliament and of the Council of 5 July 2006 governs the rights of disabled persons and persons with reduced mobility when travelling by air implemented through Decree-Law No. 254/2012, 28 November on flights departing from or arriving at airports situated on Portuguese territory.
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?
The government entities that provide services to the air carrier are under the rules of non-ontractual liability of the state and other public entities (Law No. 67/2007, 31 December) and the Portuguese Civil Code.
Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
The liability is fault-based and will be governed by article 487 of the Portuguese Civil Code.
There are conditions that must be fulfilled such as a voluntary action, unlawfulness of the act, imputation of fact to the injured party, the damage and the causal link between the event giving rise to the damage and the damage.
Are there any limitations to seeking recovery from the government entity?
Responsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Yes, in accordance with Decree-Law No. 10/2004 of 9 January, it is also possible to allocate liability based on criminal grounds.
Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
Normally, the cause of action in a civil claim will be based on the same facts as the criminal action in circumstances where a criminal action is taken by a civil claimant. In addition, criminal proceedings can be independently commenced by the Public Prosecutor. The success or not of criminal proceedings can affect the outcome of the civil proceedings.
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?
According to the Montreal Convention and the International Air Transport Association’s information, conditions of carriage seeking to limit the carrier’s liability for an aviation accident will be null and void, but the nullity of any such provision does not result in the nullity of the whole contract. However, the air carrier’s contractual conditions which are for the benefit of the passenger may be applied.
What damages are recoverable for the personal injury of a passenger?
In Portugal, punitive damages are not recoverable.
In the case of personal injury, compensation may be awarded for material damages or non-material damages. When, in the case of personal injury, the material damages recoverable are the costs of medical treatment, losses of the claimant as a direct result of the accident and compensation for the loss of profit owing to the accident.
In relation to non-material damage, compensation should be provided based on: the degree of fault; on the economic situation of the defendant and the injured party; and the other circumstances of the case.
What damages are recoverable for the death of a passenger?
In cases of death, in addition to material damages mentioned above, the funeral expenses will also be reimbursed. In relation to non-material damages, the compensation will be paid jointly to the spouse or partner or to children or other descendants. When none of these persons exists, compensation will be payable to the ascendants or other relatives and, lastly, to brothers or nephews.
Accident investigation and family assistance
Who is responsible in your state for investigating aviation accidents?
The Office for the Prevention and Investigation of Accidents with Aircraft and Rail Accidents (GPIAAF) was created in order to investigate accidents and incidents involving civil aircraft and rail transport with the objective of contributing to the prevention of future accidents and incidents and to identify the respective causes. Portugal assumed an international obligation, through the Chicago Convention of 7 December 1944, to investigate aeronautical accidents and incidents occurring in Portuguese territory, and the investigation should be conducted in accordance with Annex 13 to the said Convention. According to Decree-Law No. 318/99 of 11 August 1999. The investigation is expected to be conducted by an independent entity of the ANAC and any other party or entity whose interests or duties may be affected. The unit responsible for investigating accidents and incidents involving civil aircraft has the sole purpose of preventing future accidents and incidents, without establishing fault or assigning liability in accordance with Annex 13 of the Chicago Convention, Regulation (EU) No. 996/2010 of the European Parliament and of the Council of 20 October, Decree-Law no. 318/99 of 11 August and Decree-Law No. 36/2017 of 28 March.
Judicial or police authorities and technical investigators will work in co-operation with the GPIAAF to ensure the effectiveness of investigations.
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
In line with the standards and recommended practices from Annex 13 of the Chicago Convention, Decree-Law No. 318799 of 11 August and from the procedure manual of GPIAAF, the GPIAAF may not publish or allow access to the Draft Report or to any part or document obtained during the investigation of an accident without express consent of the State except the competent judicial authority, at its request, or when the State releases the documents.
With regard to the final report, although it is an official document which, once approved, is public and as such will be fully disclosed, all documents containing the names of persons involved in the occurrence, transcripts of communications, cockpit voice recordings or flight data recorder, witness testimony or photographs in which the parties are recognisable should not be included in reports or annexes to be disclosed.
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?
There is no specific law regarding assistance to passengers or their family after an aviation accident. However, there is a ‘Guide of Procedures for Police Authorities and Emergency Services’ that sets out that emergency services should ensure that the injured receive medical treatment immediately and that the most seriously injured are transported to a hospital. Those who have less serious injuries may stay close to the place, as well as those with friends or family trapped in the wreckage.
A general health care is applied to Portuguese nationals and a National Emergency plan for civil protection is available to provide emergency medical care and psychological assistance in case of disasters.
Are there mandatory insurance requirements for air carriers?
Yes. The obligation to take out an insurance contract for air carriers was established by Decree-Law No. 321/89 of 25 September as amended by Decree-Law No. 279/95 of 26 October. It is set forth in Regulation (EC) No 1137/2008 of 22 October and Regulation (EC) No. 285/2010 of 6 April amending Regulation (EC) No. 785/2004 of 21 April on the need for mandatory insurance requirements for air carrier and also Decree-Law No. 223/2005 of 27 December laid down the rules on penalties applicable to infringements of the Regulation.
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
The ANAC has the authority to perform functions of regulation, inspection and supervision on the civil aviation sector.
Through use of their sanctioning powers, ANAC is competent to investigate infringements resulting from non-compliance with legal and regulatory provisions and, in that context, it has authority to institute and instruct the corresponding disciplinary proceedings and misconduct procedures, as well as fines and sanctions that are provided for such purposes (article 35 of Decree-Law No. 40/2015, 16 March).
Under the terms of Regulation (EC) No. 261/2004 and Regulation (EC) No. 1107/2006, the ANAC can only investigate the claim after the passenger has submitted a claim to the air carrier and the air carrier has not answered within six weeks from the date of receipt of the claim, or the passenger is not satisfied with response of the air carrier. After that, it is possible to initiate a misdemeanour proceeding and a decision will be delivered by the ANAC. Court actions, on the other hand, would be instituted in the Court of First Instance, Civil Section. Decisions of the Court of First Instance can be appealed to the Appeal Court and decisions of the Appeal Court can be appealed to the Supreme Court.
What is the nature and extent of allowable discovery/disclosure?
Discovery or disclosure does not exist to the same degree as in some other jurisdictions. Generally, if a criminal proceeding is not involved, disclosure of information is available for all documents from the claim save for privileged material.
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
In the case of litigation arising out of an aviation accident, if, during the course of an investigation, the investigator responsible becomes aware of facts that may constitute a crime, he or she should immediately notify the competent authorities.
Witness testimony obtained by technical investigators in the course of the investigation, all communications between persons involved in the operation of the aircraft, private or medical information related to persons involved in the accident, cockpit voice recordings data, transcripts and flight data information and recorded data or transcriptions of the Air Traffic Control Services should be preserved to safeguard confidentiality.
The confidentiality of this data is only suspended when the information is relevant and essential for the determination of the causes of the accident. Relevant data should be included in the final report of GPIAAF. Information that is not indispensable should not be made available.
Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
Only court costs.
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?
In the case of court proceedings, interest will be payable from the time of service until full payment of the amount due, at the legal rate stipulated annually by legislation.
Is court approval required for settlements?
Yes, but only in circumstances where proceedings have been issued.
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?
Yes, it still be possible to seek contribution or indemnity from another person or entity.
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?