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?

Spain does not have specific courts for aviation affairs, which, generally speaking, are dealt with by the commercial and civil courts, except for the cases of criminal investigations into the circumstances of accidents and incidents. The lack of a specific jurisdiction means that sometimes the courts find different solutions to situations that, prima facie, should have the same outcome.

The interpretation of the Montreal and Warsaw Convention provisions, as per the above explanation, can be dissimilar. A good example of this issue is the case of article 35 of Montreal Convention and article 29 of Warsaw Convention, which, as mentioned in question 9, are construed differently by the courts.

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, the Montreal Convention (through its EU Regulation as indicated in question 2) and the Warsaw Convention are the sole basis for the establishment of liabilities for air carriers regarding cases of passenger injury or death. In addition, the courts apply Act 35/2015, of 22 September, as the legal regulation for the assessment of damages caused to passengers (see question 37).

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

The term ‘carrier’ does not extend to ground handling agents or other service providers. However, this term includes both the contractual carrier and the effective carrier and, in cases of cancellation or delays, both can be deemed as jointly and severally liable.

Under Spanish case law, the existence of a sole operation, through which the passenger contracts a transport or various transports with one or more than one airline is a presumption of a successive carriage according to article 1(3) of the Montreal Convention and Warsaw Convention. The existence of more than one contract does not exclude the interpretation of such transport as a successive carriage. This interpretation matches with the contents of article 45 of the Montreal Convention and enables the passenger to claim compensation against either the effective carrier or the contractual carrier, and even against both which, as stated above, could give rise to a joint and several liability.

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?

‘Accident’ is interpreted by the Spanish courts as an occurrence in connection with the operation of the aircraft or the conditions of the aircraft. Therefore, not all deaths or bodily injuries occurred in the course of a flight give rise to air carrier liability. For instance, Spanish courts have stated that Sudden Infant Death Syndrome is not an accident under article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention; consequently, in these cases, the air carrier is not liable for the death of the infant.

‘Bodily injury’ includes not only physical injuries but also moral damages suffered by the passenger.

The interpretation of ‘in the course of any of the operations of embarking or disembarking’ in Spanish case law and doctrine is not uniform. It seems, however, that an airline would be liable for the period of time the passenger is under its responsibility, although sometimes this is not easy to determine.

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 no judgments dealing specifically with the articles 20 and 21 of the Montreal Convention passed down in Spain at present. Presumably, any argument of defence raised by the air carrier would be interpreted by the Spanish courts in a restrictive manner, as they tend to be very protective of the consumers or passengers’ interests and rights.

As regards the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention, it is treated as an objective standard (ie, the standard of the Spanish Civil Law). Relevantly, the Spanish wording of article 25 of the Warsaw Convention is equivalent to the regulation of the wilful misconduct in the Spanish Civil Code and in another Spanish Civil regulation.

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?

The advance payment obligation set out in the Montreal Convention is applicable in the Spanish jurisdiction.

It should be noted that in the last major losses that occurred in Spain or affected the Spanish market, the airlines and their insurers decided (voluntarily) to make advance payments above the minimum required by the Montreal Convention - article 5 of the Council Regulation (EC) No. 2027/97 of 9 October 1997 (ie, more than the 16,000 special drawing rights (SDR)). Consequently, if that circumstance is to be faced, it would seem advisable to keep these precedents in mind.

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?

With regard to jurisdictions as to the domicile of the carrier, principal place of business of the carrier and the place of destination, disputes between the parties under Spanish case law are hard to find, as those are clear legal concepts (domicile of the carrier) or clear factual issues (the principal place of business of the carrier and place of destination).

Having said that, in respect of the jurisdiction of the place of business of the carrier through which the contract has been made, in the case of the death of a passenger, Spanish courts tend to place the burden of proof of the purchase of the ticket on the air carrier. The reason for this is that the airline is deemed to have better access to the means of proof than the relatives of the passenger. As a result, if the airline does not provide the court with supporting evidence proving where the ticket was acquired, then the Spanish court will most likely accept its jurisdiction.

Fifth jurisdiction (main residence of the passenger) is also easy to prove before the Spanish courts and it does not usually involve big disputes. A property owned or rented by the passenger, and particularly the register of the passenger at the census of the city council are assessed by the courts as clear proof of residence.

Forum non conveniens doctrine is not applied by the Spanish courts. Therefore, it is not applicable in connection with actions brought on the basis of the Montreal or Warsaw Convention.

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?

While the interpretation given to article 29 of the Warsaw Convention is clear (as absolute), Spanish case law is not harmonised on whether the article 35 of Montreal Convention should also be construed in the same manner.

The current thinking supporting the absolute interpretation of article 35 of Montreal Convention understands that its spirit is to continue with the previous status quo (ie, article 29 of the Warsaw Convention), even though the wording was modified. Another argument used is the fact that the Warsaw Convention is still in force, and the interpretation on the contents of the Vienna Convention on the law of treaties of 23 May 1969.

On the other hand, the supporters of the tolling interpretation allege the modification of the contents of the article and the nature of other periods in other similar regulations.

It would seem, however, that the trend of case law is more supportive of the absolute interpretation, although the solution for the moment will not be clear beforehand.

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 code-sharing situations, courts tend to admit the existence of liability of both the contractual and actual carrier in accordance with article 45 of the Montreal Convention. Relevantly, in cases where the plaintiff sues only one of the carriers, the courts (normally) allow the defendant to call the other carrier to the proceedings (in accordance with the article 14 of the Spanish Civil Procedural Act). With regard to the Warsaw Convention, the rulings of the courts are less clear since the Convention does not expressly establish which party should be liable in cases where contracting and actual carriers coexist.