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, 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 the 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, 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’s 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 (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.

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?

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 to 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).