Insurance and reinsurance

Captive insurance

Summarise any captive insurance regime in your jurisdiction as applicable to aviation.

Insurance in Qatar is regulated by QCB Law. The QCB issued decision No. (1) of 2016 on executive instructions for insurance sector and principles of governance of insurance companies, pursuant to the provisions of the QCB Law, which came into force in April 2016 (the QCB Insurance Regulations). The QCB Insurance Regulations govern insurance companies incorporated (as joint stock companies) in Qatar (including their branches), representative offices and branches of foreign insurance companies and all natural and artificial persons providing insurance services in or through Qatar. Article 95 of the QCB Law states that money and property located in Qatar may not be insured in another country (ie, insured in Qatar by insurance companies regulated by the QCB). However, there is no restriction on reinsurance outside Qatar.

Further, the CAA Law also requires that the aircraft crew, passengers and cargo and third parties on the ground must be insured by a certified insurance company under the laws of Qatar if the aircraft is registered in Qatar.

A minimum percentage of cover that a local insurer is obliged to retain is not prescribed.

Cut-through clauses

Are cut-through clauses under the insurance and reinsurance documentation legally effective?

Typically, the Civil Code provides that an insured or beneficiary is only able to raise a claim against the insurer and the insurer is liable to compensate the insured or beneficiary even where the insurer has reinsured the risks.

As a general principle of contracts, the Civil Code states that a contract may earn a right for a third party but cannot prescribe an obligation on a third party. As such, when the insurer or ceding company is unable to make payments to the insured or beneficiary because of insolvency or bankruptcy, a cut-through clause would be generally effective and allow the insured or beneficiary a right of direct recourse against the reinsurer.

Much would depend on the manner in which the cut-through clause is drafted in the contract of reinsurance and should ensure that the rights of the insured or beneficiaries, and the relevant circumstances under which such rights arise, are specifically identified.

Reinsurance

Are assignments of reinsurance (by domestic or captive insurers) legally effective? Are assignments of reinsurance typically provided on aviation leasing and finance transactions?

Yes, assignment of reinsurances are typically provided on aviation leasing and financing transaction and necessary notices are issued to, and acknowledgments are received from, the reinsurer.

Liability

Can an owner, lessor or financier be liable for the operation of the aircraft or the activities of the operator?

The CAA Law makes it clear that in respect of all operation-related matters, the operator is responsible for ensuring compliance with the applicable laws. Article 37 of CAA Law states that the owner of an aircraft shall remain responsible for its operation in all situations as provided under the CAA Law. In respect of compensation for damages, Article 79 of the CAA Law states that the general rules of liabilities under Qatar law would be applied except where a person suffers damage on land as a direct result of an aircraft in flight or an object that fell from such aircraft, in which case the registered owner or operator shall be liable. The CAA Regulations define an ‘owner’ of the aircraft as the owner recorded in the aircraft register and reflected in the certificate of registration. The lessor of an aircraft that is subject to a lease agreement would also be considered as the ‘owner’ and may be recorded as such on the certificate of registration.

Article 212 of the Civil Code sets out the general rules of liabilities in respect of damage caused by objects that require special care, which includes aircraft. Article 212 of the Civil Code states that the custodian or guardian of such an object would be liable for any compensation required to be made for any damage caused by the object unless the custodian or guardian is able to prove that the damage occurred for reasons beyond its control.

Where the lease agreement is clear that all such liabilities are those of the operator (lessee) of the aircraft, such liabilities will not be passed on to the lessor, owner or financiers of the aircraft provided that such parties are able to establish that they are not the registered owners of the aircraft and were not in possession or control of the aircraft or in any way involved in the operation of the aircraft as a result of which damage has been caused to any third party.

Strict liability

Does the jurisdiction adopt a regime of strict liability for owners, lessors, financiers or others with no operational interest in the aircraft?

See question 33.

Third-party liability insurance

Are there minimum requirements for the amount of third-party liability cover that must be in place?

The CAA Law requires that the aircraft crew, passengers and cargo and third parties on the ground must be insured. In this regard, the QCAA has issued a Finance Fitness Assessment Guidance Material for Air Operator Certificate Applicants and Holders (Guidelines), last updated in October 2018. The Guidelines are for (i) operators of air ambulances, aircrafts with capacity of up to 20 seats or outsized air cargo operators and (ii) regular passenger, non-scheduled passenger and all cargo operators.

With regard to the minimum level of insurance for passengers, baggage and cargo, the following limits apply:

  • passengers - at 250,000 SDR* per passenger (10,000 SDR for aircraft capacity up to 20 seats or less than 10 tonnes maximum take-off weight);
  • baggage - 1,000 SDR per passenger; and
  • cargo - 17 SDR per kg.

a* SDR is special drawing right, which is an international currency unit defined by the International Monetary Fund. As at 15 April 2019 Qatari riyal 1 = 0.198 SDR approximately.

With regard to third-party liability, the following applies:

Category

Maximum take-off weight (kg)

Minimum insurance (million SDRs)

1

< 5,999

7

2

6,000-11,999

18

3

12,000-24,999

80

4

25,000-49,999

150

5

50,000- 99,999

300

6

200,000- 99,999

500

7

> 500,000

700