Applicable treatiesMajor air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
International treaties are effective in Argentina once they are ratified by the Argentine Congress and effective from the date that the treaty establishes.
Treaties pertaining to liability in air transportation on board or in the operation of embarking or disembarking or on damages to third parties on the ground, Argentina is a party to the following treaties:
- Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929: currently in effect. Ratified by Law No. 14,111 on 29 October 1951. It entered into effect on 27 January 1952;
- Hague Protocols to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1955: currently into effect. Ratified by Law No. 17,386 on 16 August 1967. It entered into effect on 14 November 1967;
- Additional Montreal Protocols Nos. 1, 2 and 3 and Montreal Protocol No. 4 of 1975, which modified the Warsaw Convention of 1929 about International Air Transportation: ratified by Law No. 23,556 on 18 May 1988 and published in the Official Gazette on 12 July 1988. It entered into effect on 16 August 1991;
- Montreal Convention for the Unification of Certain Rules for International Carriage by Air of 1999, currently in effect. Ratified by Law No. 26,451 on 13 January 2009, it became effective in Argentina on 14 April 2009.
- Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963: ratified by Law No. 18,730 on 7 August 1970. It entered into effect on 5 November 1970;
- The Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface of 1952: currently in effect. Ratified by Law No. 17,404 on 1 September 1967 and entered into effect on 30 November 1967;
- The Hague Convention of 1970 for the Suppression of Unlawful Seizure of Aircraft: ratified by Law No. 19,793 on 21 August 1972. It entered into effect on 30 September 1972;
- Montreal Convention of 1971 for the Suppression of Unlawful Acts Against the Safety of Civil Aviation: ratified by Law No. 20,411 on 18 May 1973. It entered into effect on 17 June 1973; and
- Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation of 1971: ratified by Law No. 23,915 on 21 March 1991. It entered into effect on 20 April 1991.
At the time of the deposit of the instrument ratification, the Argentine Executive Power established a declaration. See question 5.
Although Argentina has not ratified the Guadalajara Convention Supplementary to the Warsaw Convention for the unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier, signed in Guadalajara on 18 September 1961. It included its provisions in article 153 of the Argentine Aeronautical Code (AAC).
Further to the above-mentioned treaties concerning the liability of the carriers in the international air transportation for damages on board or to third parties on the ground, the following multilateral international treaties have been ratified by Argentina:
- Decree-Law No. 15,110/46 and Law Nos. 13,891 and 25,622 (ratification of the Chicago Convention 1944) and its following amendments ratified by Law No. 15,110/1946; amendments ratified by Laws Nos. 19,065, 19,675 and 21,633 and to articles 3-bis and 83-bis of the Chicago Convention Laws Nos. 23,399 and 23,519;
- Law Nos. 22,028, 23,399 and 23,519 (ratification of the 1977, 1984 and 1980 Montreal amendments to the Chicago Convention);
- Decree-Law No. 12,359/57 (ratification of the Geneva Convention 1948 on the International Recognition of Rights in Aircraft);
- Law No. 23,111 of 30 September 1984 (ratification of the Rome Convention 1933 for the Unification of Certain Rules on Precautionary Arrest of Aircraft). It entered into effect on 29 December 1984;
- Law No. 25,806 of 5 November 2003 (sub-regional agreement with Bolivia, Chile, Brazil, Paraguay, Peru and Uruguay (Fortaleza Agreement) for the exchange of traffic rights in routes outside of the scope of the bilateral air services agreements between those countries). It entered into effect on 5 December 2003;
- Law No. 14,457 (ratification of the 1948 Geneva Convention on the International Recognition of Rights in Aircraft); and
- Law No. 27.357 (Ratification of 2001 Cape Town Convention on international interests in mobile equipment and the Protocol to the Convention on International interests in mobile equipment).
International carriage - liability for passenger injury or deathMontreal 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, since the Montreal Convention is applicable in Argentina in general the courts have followed the same interpretation as when the application of the Warsaw Convention was applicable.
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 courts in Argentina consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability in cases of passenger injury or death.
Starting with the Álvarez, Hilda Noemí v British Airways on Damages case tried at the Federal Civil and Commercial Court of First Instance No. 5, Secretary No. 9 (A. 519. XXXVII, 10/10/2002), when appealed to the Argentine Supreme Court the latter revoked the first instance decision, confirmed the application of the Montreal Protocol No. 2 (Law No. 23,556) and held that any damage caused as a result of international transportation by air on a carrier by a passenger must be decided by the applicable international convention.
Before the Argentine Supreme Court decision in the above-mentioned case, the courts used to grant material damages within the provisions of the applicable international convention and moral damages within the provisions of the ACC.
Notwithstanding the above, it is worth mentioning and Law 24240 on consumers’ rights is later approved by court particularly in the Inferior of Argentina.Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
In accordance with article 140 of the AAC, the owner is the operator of the aircraft providing it has been assigned such title by a contract duly registered at the Argentine Aircraft Registry.
Consequently, the operator or the assignee is responsible for damages for injuries, death or damages to luggage or cargo if such damage took place during the air transportation or in embarking or disembarking.
Argentine courts only apply the Warsaw Convention or the Montreal Convention as applicable to the carriers and not to the successive carriage, unless the latter is also an air carrier.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?
Argentina ratified the Montreal Convention on 14 February 2010. At the time of depositing the instrument of ratification, Argentina provided the following interpretative declaration, dated 13 February 2009:
For the Argentine Republic the expression ‘bodily injury’ contained in article 17 of this Treaty includes as well mental injuries related to the bodily injury or any other mental injury that affects the passenger in a prejudicial and serious mental injury that affects the health of the passenger or his or her capacity to perform daily activities of a normal person that seriously reduces his or her capacity to perform those daily activities.
The concept of accident used in Argentina is based on Annex 13 of the Chicago Convention. From the doctrine and Argentine court precedents point of view, the US court precedent Air France v Saks (470 US 392, 1985) is taken as a model.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?
With respect to the application by Argentine courts of article 21 of the Montreal Convention, there are to our knowledge no precedents.
Article 20 of the Montreal Convention of 1999 would be applicable in Argentina because it follows the Argentine Civil and Commercial Code (CC&C) article 1721 where damages produced by a responsible person may be based in objective or subjective factors. In the absence of a norm, the no negligence defence is used to attribute damages.
Likewise, pursuant to CC&C article 1724, the subjective factors to attribute both fault and wilful misconduct are the following:
- the fault consists in the omission of the due diligence applicable in accordance to the nature of the obligation and the circumstances of the persons, time and place;
- it consists of imprudence, negligence, inexperience in the art or profession of the person who causes the damage; and
- wilful misconduct is damage produced intentionally or with manifest indifference regarding the damage that an intentional act may produce.
Furthermore, article 1734 provides the indication of who has to prove damages and the exculpatory circumstances and it states that those evidences have to be provided by the party that alleges the fault or wilful misconduct. Moreover, article 1735 grants the courts the right to distribute the burden of proof, taking into account which of the parties is best able to provide the evidence.
Article 142 of the AAC sets forth that: ‘the carrier will not be responsible if it proves that the carrier and its agents have taken all necessary measures to avoid damage or that it was impossible to take them.’ This article was taken to adapt the concept to the Hague Protocol of 1955.
In Resolution No. 1532 issued by the former Ministry of Economy and Public Services on 27 November 1998, which sets forth the conditions of international carriage by air, article 19 establishes a similar provision to article 20 of the Montreal Convention and confirms the provisions of the Convention.
Regarding the interpretation of the Argentine courts of article 25 of the Warsaw Convention, the courts follow a subjective standard that is to say that claimants need to prove the wilful misconduct of the carrier. To do so, the plaintiff will need to comply with the Argentine Civil and Commercial Procedure Code (CCPC) regarding its provisions to provide evidence against the carrier.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?
No, there is no specific provision about the need to make advance payments to the injured passengers or the family members of deceased passengers following an aircraft accident, except for the provisions of the Montreal Convention of 1999.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?
The CC&C does not provide a definition for ‘residence’ because it is not based on a legal concept. However, article 73 of the CC&C gives a definition for ‘real residence’, establishing that a person has a real residence at the place of his or her habitual residence.
Additionally, the Argentine Income Tax Law (Law No. 20,628) establishes a concept for residence in article 26, which states:
For the purposes of this law, persons of visible existence who are located abroad at the service of the Nation, provinces or municipalities and officials of Argentine nationality acting in international organisations of which the Argentine Republic is a Member State will be considered residents.
Article 33 of the Montreal Convention sets forth that a passenger’s residence has to be permanent and principal. These elements make the residence concept of the Convention similar to the concept of real residence in the CC&C.
Argentine jurisprudence also identifies the concept of ‘domicile’ as ‘habitual and permanent residence’.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?
Originally, Argentine courts followed the provisions of the two-year limitation of the Warsaw Convention absolutely and it considered such a caducity term. Following the issuance of Mediation Law No. 26,589, it is no longer absolute. In accordance with Law No. 26,589, the mediation procedure establishes a ruling that interrupts the two-year limitation provision of article 35 of the Montreal Convention and article 29 of the Warsaw Convention.
In accordance with article 18 of Law No. 26,589, the pre-judicial mediation suspends prescription and caducity in the following cases:
- in the mediation procedure by the parties’ agreement from the date in which the notification for the first hearing to the required party or as from the mediation hearing, whichever occurs first;
- in the mediation originated by a judicial authority as from the date in which the mediator was appointed; and
- in the mediation proposed by the party that requests it as from the date in which the notification for the first mediation hearing was sent or as from the mediation hearing date, whichever occurs first.
In the cases of (1) and (2), the suspension is for both parties. In the case of (3), it is only against the required party.
In all cases the prescription and caducity term restarts 20 days after the mediation procedure is closed.
Consequently, the two-year limitation in accordance with Argentine law is currently a prescription term and may be interrupted by the mediation procedure as explained, because in accordance with the CCPC, caducity may not be 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?
Regarding the liability of carriage performed by a person other than the contracting carrier, such as code sharing and similar types of arrangements in international carriage, the courts follow the Montreal Convention provisions.
In international carriage not ruled by the Montreal or Warsaw Conventions or in domestic carriage, the courts abide by article 153 of the AAC.
Domestic carriage - liability for passenger injury or deathGoverning laws
What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
The law that governs the liability of an air carrier for passengers’ injury or death occurring during domestic carriage is the Law No. 17,285, the AAC, whose article 144 establishes the limitation of liability of the air carrier for each passenger death in 1,000 Argentine ‘gold pesos’. The Argentine gold peso is a historical currency whose conversion to the current Argentine currency is established by the Argentine Central Bank.
Law No. 1,130 issued on 5 November 1878/81 established that the monetary unit in the Argentine Republic was the gold or silver peso. Both the gold and the silver peso contain a certain amount of gold or silver. Since this currency is not in force in Argentina, Executive Decree No. 75/76 issued on 16 January 1976 states the Argentine Central Bank establishes the exchange rate quarterly between the Argentine gold peso and the local currency now in use based on the average price of gold in London, New York and Paris, and the amount of gold in the Argentine gold peso.Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
According to articles 139, 142 and 143 of the AAC, the air carrier is responsible for the death or any injuries suffered by the passengers during the journey or during the operations of embarkation or disembarkation of passengers. However, the air carrier will not be responsible if it proves that it or its employees took the necessary measures to avoid the damage, or if it was impossible to avoid it.
The responsibility of the air carrier could be avoided if it proves that the damage was caused by the person who suffered the damage or contributed to it.Liability limits
Is there any limit of a carrier’s liability for personal injury or death?
Article 144 of the AAC establishes the nature and conditions for an air carrier liability.
The limit of a carrier’s liability is 1,000 Argentine gold pesos for each passenger. This limitation is not applied if the damage is a consequence of its wilful misconduct or that of its employees who were acting in accordance with their functions (article 147).
Article 146 establishes that any clause of the transportation contract that imposes the exemption or a lower limitation of liability is null and void, but it is possible to establish a higher limitation of liability by agreement between the carrier and the passenger.Main defences
What are the main defences available to the air carrier?
The main defences available to the air carrier are that it and its employees acted at all times with due diligence or that the damage was caused by the person who suffered the damage or helped or contributed or provoked the event.Damages
Is the air carrier’s liability for damages joint and several?
The air carrier’s liability for damages joint and several may be granted in successive and combined transportation with another air carrier, or with the official authorities when it is the government that is responsible for the actions or omissions in the operation.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?
See question 14.Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
According to article 228 of the AAC, actions against an air carrier have a limitation period of a year. The exception established in article 229 fixed a prescription of two years in the cases of search, salvage and rescue.
Third-party actionsSeeking recovery
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
The CCPC (Law No. 25,624, Chapter VIII, Book II, articles 90 to 96) sets forth that if a third party contributed to producing damage the carrier may call the third party to the process. Such third party may not be punished, in such procedure but it can then be sued by the original defendant if the court decision has not been appealed.
In the case Zofracor SA c/ Estado Nacional s/ amparo (Mayoría: Moliné O’Connor, Fayt, Belluscio, Pettrachi, Boggiano, López y Vázquez CSJN Z. 74. XXXV. - 14/12/1999 T. 322 P. 3122), the Argentine Supreme Court decided that it is legal to call a third party to a legal process when this third party has a direct interest in the case and the court decision will, in the end, be binding.
Also it is worth mentioning that, in accordance to the insurance Law No. 17,418, it is possible for the defendant party to call the insurance company to the court case if the conditions of the insurance policy are under discussion or if the defendant or plaintiff has been insured.
According to article 80 of Law 17,418, if the insurance company has to pay damages it has a right to recover the damages from the person or company that produced such damage.Time limits
What time limits apply?
The defendant party may call the insurance company during the course of the trial until the court is ready to receive the evidence. When the court decision is final with respect to the insured party, the court decision may be enforced against the insurance company.
Liability for ground damageApplicable laws
What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
Article 155 of the AAC grants any person who suffers damage on the ground to recover damages providing that the damage relates to an aircraft in flight or a person or object on an aircraft or by abnormal noise made by an aircraft.
This concept is also applied to damage caused on the ground by a foreign aircraft because Argentina ratified the Rome Convention of 1952, Law No. 17,404 mentioned in question 1.Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
Article 155 of the AAC establishes a strict liability.
Furthermore, article 156 of the AAC sets forth that an aircraft is in flight from when it applies the motor power to take off until it finishes its landing.Liability limits
Is there any limit of carriers’ liability for ground damage?
One should mention that article 158 of the AAC sets forth that if a person does not have ownership or legal assignment to use the aircraft as an operator it is responsible for damage caused on the ground.
The operator of the aircraft is jointly and severally responsible unless the operator proves it has taken the necessary measures to avoid the illegal use of the aircraft.
Article 159 of the AAC indicates that the operator’s liability for damages to third parties on the ground may be diminished or abolished if it proves that the victim has caused or contributed to cause the damage.
Regarding the limitation of liability, the operator is responsible in each accident in Argentine gold pesos, taking into account the following scale:
- 2,000 Argentine gold pesos for aircraft its take-off weight is not more than 1,000kg;
- 2,000 Argentine gold pesos plus 1.12 Argentine gold pesos for each kilogram over 1,000gk for aircraft take-off weight of more than 1,000kg and less than 6,000kg;
- 10,400 Argentine gold pesos plus 1 peso per kilogram in excess of 6,000 for aircraft take-off weight more than 6,000kg and not exceeding 20,000kg;
- 25,000 Argentine gold pesos plus 1.2 pesos for each kilogram that exceeds 20,000 for aircraft weighing more than 20,000 and not exceeding 50,000kg; and
- 43,800 Argentine gold pesos plus 0.37 of Argentine gold pesos for each kilogram in excess of 50,000kg for aircraft take-off weight of more than 50,000kg.
The indemnity for death or injuries will not exceed 2,000 Argentine gold pesos per person.
If more than one person is injured, the indemnities will be proportionally distributed.
When the law refers to the weight, it means the maximum weight authorised for an aircraft by its airworthiness certificate to take off.Main defences
What are the main defences available to the air carrier in a claim for damage caused on the ground?
Article 162 of the AAC sets forth that the operator is not allowed to defend itself within the provisions of the above-mentioned articles that limit its responsibility if the damage to the third parties is caused by its wilful misconduct or the wilful misconduct of the persons within its responsibility acting in the performance of their functions.
Liability for unruly passengers and terrorist eventsApplicable laws
What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
In the domestic air transportation, the Argentine Criminal Code here in after ACC, establishes in the following articles provisions regarding this question.
Article 190 of the ACC sets forth that any person who deliberately performs any act that puts in danger the security of an aircraft may get between two and eight years of prison. If the event constitutes a disaster the penalty may be between six and 15 years in prison.
If the event causes injuries to any person, the penalty will be between six and 15 years of prison and if the act results in death, the prison sentence will be increased to between 10 and 25 years.
Article 194 of the ACC indicates that even if a person’s conduct does not create a situation of common danger but could endanger the normal functioning of air transportation, the person who causes such event may be imprisoned for between three months and two years.
In international air transportation, the Conventions to which Argentina is a party apply (see question 1).Nature and conditions of liability
What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?
Argentina follows the provisions of Annex 17 of the ICAO Convention and specifically ICAO document 8973.
Article 184 of the ACC, paragraph 6, provides for a three-month to four-year imprisonment for the person who operates an informatics system that may interfere with any public service or means of transportation.
Also, articles 190, 194 and 198 refer to illicit conduct that puts the safety of the air transport in danger.
Resolution 1532/1998 of the former Ministry of Economy and Public Services rules on the right of admission to disruptive passengers in its articles 8 and 14.
Disposition No. 58/2008 of the Argentine Regulations on Civil Aviation contains rules applicable to possible situations of disruptive passengers and provides instructions that the crew members must receive to handle disruptive passengers.
Furthermore, the Argentine Federal Civil and Commercial courts have taken decisions in cases of disrupted passengers (ie, Rodríguez, Gabriel Darío v Aerolíneas Argentinas for damages decided by Federal Civil and Commercial Court No. II, in which it was held that the airline’s decision was reasonable and justified in refuse the embarkation of a passenger who had acted violently against a company employee who had already refused the embarkation of a passenger when the doors of the plane were already closed).
As a party to the Tokyo Convention, the 1999 Montreal Convention and the 1971 Montreal Convention, Argentina may enforce its rules in cases of acts performed by an unruly passenger.Liability limits
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
See questions 24 and 25.Main defences
What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?
The air carrier may resort in the first moment to the Argentine Aeronautical Police if the unruly passenger or the terrorist event occurred on board and the first point of arrival was an Argentine airport.
Next, it may move the case to the Federal Criminal courts in Argentina.
According to article 198 of the AAC, the Argentine Supreme Court and the federal courts have jurisdiction in cases arising out of the air, navigation or commercial navigation and of criminal acts that may affect them.
Article 199 of the AAC sets forth that acts or criminal acts performed in an Argentine private aircraft over Argentinian territory, its jurisdictional waters or where no other state has sovereignty are ruled by the laws of the Argentine nation and judged by its courts.
In addition, Argentine courts and Argentine laws have jurisdiction over the events or acts performed or criminal acts committed on board a private Argentine aircraft over foreign territory if a legitimate interest of the Argentine state or persons domiciled in Argentina is infringed, the first landing was made after the fact act or the criminal act occurred in Argentina.
Article 200 of the AAC sets forth that for criminal acts performed on board a private foreign aircraft in flight over Argentinian territory or its jurisdictional waters, the Argentine courts’ jurisdiction and the Argentine laws apply only if the acts:
- infringe security, military or fiscal laws;
- infringe laws or rules of air circulation; or
- compromise the security, the public order or the interest of the Argentine state or those of the persons domiciled in Argentina or the first landing after the fact or criminal act was in Argentina unless an extradition petition was filed beforehand.
Article 201 of the AAC sets forth that the facts, acts or criminal acts committed on board a public foreign aircraft over Argentinian territory or its jurisdictional waters are ruled by the law of the flag of the aircraft and judged by its courts.
Liability for harm caused by dronesApplicable legislation
Summarise the laws or regulations related to the liability for injuries or damage caused by drones.
First of all, we must clarify that for Argentina a drone is not an aircraft. This means that, in principle, the provisions and principles of the aeronautical law do not apply completely to an unmanned air vehicle.
The Civil and Commercial Code in articles 1757 and 1758 establishes that every person is liable for damage caused by risky or defective items, for activities that are risky or dangerous by their very nature or by their realisation.
The responsibility is objective and unlimited. Administrative authorisation for the use of the item or the realisation of either the activity or compliance with the prevention measures is not exempt.
Also, since there are no specific rules that provide a mandatory provision for insurance for third parties on the ground, the liability rules of the Civil and Commercial Code will be applicable in case of damage by drones to third parties on the ground. As an example in 2015 in Buenos Aires, a drone fell on the head of a passer-by and the operator was delayed by the police, as violated article 94 of the Argentine Criminal Code, which imposes a penalty from one month to three years in prison or fines of 1,000 pesos to 15,000 pesos and disqualification from one to four years for those who cause injuries due to recklessness or negligence, for lack of skill in their art or profession, or for non-observance of regulations or duties in their position.
Consumer protection and passenger rightsApplicable legislation
Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.
In Argentina, consumer protection is a constitutional right. Furthermore, on 22 September 1999, Law No. 24,240 was issued and its article 63 sets forth that: ‘In cases of the contract of air transportation the Aeronautical Code and the international treaties are applied and only in subsidy the provisions of Law No. 24,240 are applied.’
Although article 63 was disputed in Congress when Law No. 24,240 was modified and Congress intended to delete article 63, the Executive Power vetoed such a decision by Executive Decree No. 565/2008. The most important arguments used by Decree No. 565/2008 were that:
- Argentina has ratified the Montreal Convention;
- in England, the House of Lords in the case Sidhu v British Airways decided in 1967 that the liability international treaties for the regulation of commercial air transportation were the sole and exclusive cause of action when damages arise out of air transportation;
- the US Supreme Court in the case El Al Israel Airlines v Tseng in 1999 ratified that the multilateral international treaties applying to the liability to the commercial air transportation was the exclusive cause of action; and
- the commercial air transportation industry is fully ruled by the states.
Although so far the Argentine courts have consistently applied international treaties as the exclusive cause of action to file actions for damages occurring during air transportation, it is worth mentioning that there is a strong movement in Argentina to try to apply consumer law to this industry.
Any passenger, as a service user, is protected by Law No. 24,240 as amended by Law No. 26,361 (the Consumer Rights Protection Law). Nevertheless, section 63 of this law sets forth that the AAC and the international liability conventions that regulate aviation liability take priority over Law No. 24,240. Furthermore, Law No. 26,361 created the Consumer Relationships Prior Conciliation Service (COPREC). This new agency has authority to call for mediation hearings at the request of consumers who seek compensatory damages that do not exceed 55 minimum monthly salaries at this day approximately US$15,865. The Secretariat of Commerce of the Ministry of Production issued Resolution 394/2018, which creates the figure of the ‘Defender of the Client’ within Law No. 24,240 on Consumers Rights Protection. The new figure is aimed at addressing and resolving in a simple and expeditious manner the complaints or the claims of consumers or users either by proposing conciliatory agreements between the parties or by drafting opinions of a binding nature for companies to resolve the issue.
COPREC should apply article 63 of Law No. 24,240, as amended, but so far no COPREC decision has clarified whether they must apply article 63 of Law No. 24,240.
The National Administration of Civil Aviation (ANAC) Resolution 1195/2016 approved the statistical information system applicable to commercial air operations to establish a ranking. A group of carriers has been chosen by the ANAC to produce quarterly IATA delay codes for delays of more than 15 minutes from the approved schedules.
Liability of government entities providing services to carriersRelevant laws
What laws apply to the liability of the government entities that provide services to the air carrier?
The recent modification of the Argentine CC&C sets forth in article 1765 that the liability of the State is ruled by the norms and principles of the national or local Administrative Law.
The responsibility is objective. The fact that the thing that caused the damage was administratively approved or the performance of the activity liberates the responsibility.
Before, Law No. 26,944 clearly indicated that this law rules the liability of the state for the damages that its activity or inactivity produce to the things or rights of the persons. The responsibility of the state is objective.Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
The responsibility of the government is objective.Liability limits
Are there any limitations to seeking recovery from the government entity?
There are no limitations to seeking recovery from the government entity as long as the injured party can prove the link between the damage and the activity or inactivity of the government.
Criminal proceedingsResponsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
See our response to question 24.Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
The effect of criminal proceedings of the air carrier on a civil action by the passenger or their representatives is that the responsible executives of an air carrier may be criminally denounced in the Argentine criminal courts and the proceedings are followed until the responsible parties may be convicted or absolved.
In the LAPA accident of the aircraft LV-WRZ at the domestic airport in Buenos Aires on 31 August 1999, the president, general director, maintenance manager and many other LAPA executives were criminally denounced.
Although the president of the company was finally absolved after the oral trial on 2 February 2010, in the framework of article 196 and the criminal rules of the ACC, the operations manager and the responsible executive for the LAPA aircraft’s LV-WRZ Boeing had to serve three-year prison sentences.Compensation
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
No. The claim for compensation by passengers or their representatives must be made first in the framework of the mediation hearing under Law No. 24,573 and once the mediation hearing has been closed with no settlement, the passengers or their representatives may file a complaint in the civil and commercial federal courts.
Effect of carrier's conditions of carriage and tariffsLiability
What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?
The legal effect of a carrier’s conditions of carriage or tariffs has clearly an effect on the carrier’s liability. Those conditions constitute the contract of carriage between the passenger and the airline and consequently have a binding effect on passengers’ rights.
Resolution No. 1532 of the former Ministry of Economy and Public Works and Services of 1998 governs the conditions of carriage established by the government. The carrier’s conditions of carriage take precedence over the conditions of contract established by Resolution No. 1532 unless the latter have better conditions for the passenger.
What damages are recoverable for the personal injury of a passenger?
Patrimonial and moral damages are recoverable for personal injury of a passenger. Moreover, other damages such as aesthetical or psychological damages are recoverable only if such damages are proved in court by plaintiff.
Nevertheless, all the above-mentioned damages must be included within the limitation of liability imposed by the AAC in the case of domestic or international transportation in cases where a treaty is not applicable.
For limitation on damages, see question 13.
The AAC does not rule on any punitive damages. The amended Consumer Law allows punitive damages.
The limitation of liability of the carrier does not function if the carrier caused the damage with wilful misconduct. The responsibility of the AAC is limited, subjective and with the reversal of burden of proof.
The beneficiaries are the forced heirs by law.
What damages are recoverable for the death of a passenger?
Damages recoveries for the death of a passenger are those established by the Warsaw Convention System including the Montreal Convention of 1999.
For domestic transportation, the death of a passenger is recoverable within the norms established by the AAC.
Accident investigation and family assistanceInvestigatory authority
Who is responsible in your state for investigating aviation accidents?
Following the ICAO Convention, the Accidents Investigation Board that depends on the Ministry of Transport, is in charge of determining the cause of accidents and incidents to aircrafts or produced by them. Title IX of the AAC establishes a chapter called Aviation Accident Investigation.
Article 185 of the AAC sets forth that any aviation accident must be investigated by the aeronautical authority to determine its causes and establish the measures to follow to avoid its repetition.
Article 186 to 190 of the AAC specifies the rulings to follow in an aviation accident.
ANAC Resolution No. 974/2016 sets forth the rules for responding to an air accident and includes the steps to be taken by the authority and the airline involved both on domestic and international scheduled and non-scheduled flights to assist victims and their families and governs the responsibilities of the aeronautical authority in such a case.Disclosure restrictions
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
Although in accordance with the ICAO norms and specifically Annex 13 the Accidents Investigation Board reports should not be used as evidence in court trials, Argentinian courts tend to use such reports as evidence. The Accidents Investigation Board confers confidentiality on certain information such as recordings of cockpit conversations and recordings of on-board images and any transcripts thereof for purposes other than technical investigation of civil aviation accidents and incidents (Resolution No. 252-E/2017).
On 17 September 2019, Law 27,514 published in the Official Gazette, declared the security policy in transport for Argentina to be of public interest.
Law 27,514 creates the Justa de Seguridad en Transporte (Transportation Security board) as a descentralised agency of the Ministry of Transport, as soon as this agency is implemented the Accident Investigation of Civil Aviation Board will be part of the Justa created by Law 27,514.Relevant post-accident assistance laws
Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?
See question 38.
Insurance requirementsMandatory requirements
Are there mandatory insurance requirements for air carriers?
Yes. The ANAC does not allow a carrier to fly to, from or over Argentine territory and its jurisdictional waters unless a legalised insurance certificate is provided by the carrier covering the risks imposed by the AAC and eventually Title X of the AAC sets forth that the operator is mandated to insure its personnel against risks of any accident that may occur to passengers and cargo on board and to third parties on the ground.
Articles 191 to 196 of the AAC define the rules to be followed by the operator to insure its aeronautical activity, such as:
- employee insurance (for all those who carry out functions on board);
- insurance against damage caused by death or injury suffered by a passenger (note that according to Argentine jurisprudence, moral damages are granted for death or personal injury as well as for delay or cancellation of flights) or damage to transported cargo and mail; and
- insurance against damage caused to third parties on the surface.
For international flights, the insurance must at least cover the liability limitations set forth in the international conventions that have been ratified by Argentina and those established by the AAC.
Litigation procedureCourt structure
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
See question 20.
In accordance with Law No. 26,589, a pre-judicial mediation procedure must be followed before a complaint can be filed in court.
Complaints by passengers or cargo shippers or consignees for damages in air transportation must be filed in the first instance federal courts. Depending upon the amount of the first instance court decision (US$1,160), the plaintiff and defendant may appeal to the civil and commercial federal court of appeals.
Only if an international treaty or a constitutional right is considered to be infringed, the parties may still appeal to the Argentine Supreme Court within the legal framework of article 14 of Law No. 48.
In the Argentinian legal system there is always a right to appeal the first decision and get a revision from a judicial tribunal.
Nevertheless, cases decided in the first instance court cannot be reviewed by the court of appeals if the amount of the case is lower than approximately US$2,500 if the complaint was filed after 1 January 2019.
In respect of administrative proceedings, it applies the specific principle that every decision taken by an administrative authority can be reviewed by a judicial tribunal. It should be noted that in the case of fines, this review is sometimes conditioned to the previous payment of the fine.Allowable discovery
What is the nature and extent of allowable discovery/disclosure?
In accordance with the CCPC, complaints must be responded by the defendant within 15 days. During those 15 days defendants must provide the court all the evidence that they intend to produce during the trial. The trial is mostly in writing except for the testimonial audiences. Nevertheless, the court may consider the case as sumario, in which case the court grants five working days to respond the complaint and provides the evidence that it intends to prove.
Only in very exceptional cases can new evidence be filed with the court, which occurs after the response of the complaint but in general they are contested.Evidence
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
Yes, the CCPC allows the parties to ask the other side to keep evidence that may be useful for the courts in making decisions.Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
In accordance withLaw 24,432 which governs Buenos Aires City jurisdiction’s attorney’s fees, it is for the courts to establish the amount of legal fees that the attorneys and expert witnesses may get. Nevertheless, attorneys can negotiate their fees with their clients outside court (Law No. 21,839 - Law of Tariffs and Professional Fees - amended by Law No. 24,432).
Attorneys may recover their legal fees from their clients or from the losing party.
Judgments and settlementPre and post-judgment Interest
Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
The federal courts impose interest on the amounts granted to the party that wins the case in a percentage that change from time to time (activation rate of the Banco de la Nación Argentina) from the date of the event to the date of the actual payment.Settlements
Is court approval required for settlements?
If the settlement was obtained during the mediation procedure as per Law No. 26,589, no court approval is necessary. If the settlement was obtained before a complaint started, no court approval is needed.
If the settlement is reached during the trial period, either the court approves a settlement or the parties desist from the case.
What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?
If a legal assignment has been made between the person entitled to get an indemnity from another person or entity, the latter may still pursue the claim against the airline.
Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?
To our knowledge, there is no financial sanction, laws or regulations in Argentina that must be considered before an air carrier or its insurer may pay a judgment or settlement.
Updates and TrendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?Key developments of the past year51 What were the key cases, decisions, judgments and policy and legislative developments of the past year?
Law 27,514, as mentioned in question 40, establishes for the first time policy security in transportation in Argentina, including all means of transportation.
In 2008, the government of Argentina imposed an entrance fee on US, Canadian and Australian citizen these countries collect a similar fee from Argentine citizen for entrance into their territories when they require a visa. At the beginning the US, Canadian and Australian citizen where able to pay such fee at the airport upon arrival to Argentina but then, the Argentine immigration office here in after DNM sets up a system introducing the need to pay the reciprocity fee at source by electronic means, as a consequence many travellers arrived in Argentina without the necessary payment. DNM considered that such passengers intended to enter Argentina irregularly and fined the airline for such alleged irregularity. Recently, the Administrative and Contentious Federal Court decided a number of cases in favour of the airlines and in some declared the unconstitutionality of the reciprocity fee:
- Juzgado contencioso administrativo federal No. 12 19/08/19 LAN Argentina SA c/EN-DNM s/recurso directo’;
- Juzgado Contencioso Administrativo Federal No. 5 19/06/2019 ‘berias líneas aéreas de España SA c/EN-DNM s/recurso directo para juzgados’; and
- Juzgado Contenciosos Administrativo Federal No. 12 11/07/2019 British Airways PLC c/EN- DNM s/recurso directo para juzgado’.
Executive Decree No. 49/2019 has taken the first steps to implement a free competition system in the provision of ramp services that so far have been monopolised by Intercargo, a company whose shares currently belong to the Ministry of Transport.
Antitrust Regulation Law 27,442, published on 15/05/18, modified the previews law and is the new regulation on antitrust in Argentina.
Law 27,442 has created a more efficient system for controlling mergers and sets forth sanctions applicable to anticompetitive practices, preventing economic concentrations that may result as the limitation, restriction or distortion against the general economic interest.
Decree 480/2018 listed the requisites that must comply with by the companies to be mergers.
In the case Asociación de Consumidores y Usuarios de la Argentina c. EN/ENACOM y Otros s/ Proceso de Conocimiento, the Court of Appeals Federal, Contentious and Administrative, Chamber III held in favour of the plaintiff, a consumer association, that avoided the possibility of an illicit economic concentration on the part of a merger of two telecommunication companies on 24 May 2018.