Insurance and reinsuranceCaptive insurance
Summarise any captive insurance regime in your jurisdiction as applicable to aviation.
Yes, all insurance requirements under the Aeronautical Code must be granted by an insurance carrier authorised by the Argentine National Insurance Superintendency, and the only entities that can obtain this authorisation are those incorporated in Argentina, either as a domestic company or as a branch of a foreign entity. The mandatory insurance regime for aircraft comprises: (i) damage to passengers, baggage or goods; (ii) damages to third parties on the surface; (iii) damage caused in free transport; and (iv) aircraft collision.
In addition, the operator is obliged to hire an occupational risks insurance for his or her personnel, with a company duly authorised by the Superintendency of Occupational Risks.Cut-through clauses
Are cut-through clauses under the insurance and reinsurance documentation legally effective?
Are assignments of reinsurance (by domestic or captive insurers) legally effective? Are assignments of reinsurance typically provided on aviation leasing and finance transactions?
Yes. These provisions are usual, notwithstanding that the first insurer is the only one liable with respect to the insured. In the case of liquidation of the first insurer, the insured has a privilege over the outstanding amount owed by the reinsurers.Liability
Can an owner, lessor or financier be liable for the operation of the aircraft or the activities of the operator?
If lessors or financiers do not hold any ownership title over the aircraft, they will not be liable for the operation of the aircraft or the activities of the operator, although in general, financial leasing implies that the lessor holds the title of the aircraft until the lessee exercises the purchase option. The owner of the aircraft always has strict liability with respect to the inherent risk of the aircraft unless it proves that the aircraft was used against the owner’s will. It should be noted that certain activities of the operator would be clearly outside the scope of the inherent risk of the aircraft, such as overbooking claims.Strict liability
Does the jurisdiction adopt a regime of strict liability for owners, lessors, financiers or others with no operational interest in the aircraft?
Yes, as mentioned in question 33, the owner of the aircraft always has a strict liability with respect to the inherent risk of the aircraft unless it proves that the aircraft was used against its will. The same provision applies to the lessors, financiers or others if they hold an ownership title over the aircraft.Third-party liability insurance
Are there minimum requirements for the amount of third-party liability cover that must be in place?
Yes, the Argentine Aeronautical Code contains certain limitations of liability in the case of damages, and it requires that the insurance must always guarantee the amounts arising from those limitations.
In particular, in the case of transportation of passengers, the operator liability is limited to the equivalent of 1,000 Gold Argentine.
With respect to the damages to third-parties on the surface, the following scale must be considered:
- 2,000 Gold Argentine for aircraft below 1,000kg;
- 2,000 Gold Argentine plus 1 ½ Gold Argentine for each kg over 1,000, for aircraft over 1,000kg and below 6,000kg;
- 10,400 Gold Argentine plus 1 Gold Argentine for each kg over 6,000 for aircraft over 6,000kg and below 20,000kg;
- 25,000 Gold Argentine plus ½ Gold Argentine for each kg over 20,000, for aircraft over 20,000kg and below 50,000kg; and
- 43,600 Gold Argentine plus 0.37 Gold Argentine for each kg over 50,000kg, for aircraft over 50,000kg.
In the case of death or injuries, the operator liability will not be more than 2,000 Gold Argentine per individual.
Gold Argentine is a coin held by the Argentine Currency House, with a current value of around 11,300 pesos.