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 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 the 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, 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.
Liability limits

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.

Main defences

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 damage was 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.

Damages

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.