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Introduction
The civil aviation sector in Colombia is quite dynamic and plays a crucial role in economic development. Colombia's geography is characterised by the fact that the Andes Mountain range crosses a substantial portion of the territory. The difficulties arising from this phenomenon have historically complicated the construction of quality transportation infrastructure. As a result, Colombians rely heavily on aviation to travel around the country. According to the consolidated figures,1 in 2023, Colombia experienced significant growth in passenger traffic; 49 million passengers travelled to and from airports in Colombia, a growth of 2.9 per cent compared to 2022. The latest figures show that during the first quarter of 2024, air transport service in Colombia carried 13 million passengers, an increase of 14.8 over the first quarter of 2023.
Although, as a result of the pandemic, in 2020 air passenger traffic dropped to less than one-third (13 million passengers) of the figure observed in 2019 (41 million passengers), by 2021 traffic recovered substantially (30.5 million passengers) and in 2022 (48 million passengers) it significantly exceeded the 2019 level.
Aviation is regulated by the Code of Commerce. It establishes the principle that all civil aviation activities are subject to the supervision and regulation of the Colombian government, directly and through the Civil Aviation Authority of Colombia (Aerocivil).
Aerocivil has broad and comprehensive powers to regulate all matters related to civil aviation. The Aeronautical Regulations of Colombia (RAC) is a body of statutory regulations issued by Aerocivil that is amended and updated from time to time. Aside from the RAC, Colombian civil aviation activities are also subject to multiple multilateral and bilateral treatises and conventions that govern a wide variety of issues.
The RAC applies to all civil aviation activities and to all individuals and legal entities, whether national or foreign, that engage in such activities within Colombia, as well as to activities that take place on board Colombian registered aircraft and on board foreign aircraft operated by Colombian carriers. RAC regulations include the regime for aeronautical personnel, define civil aviation activities and contain rules that govern matters such as aircraft airworthiness, operations, commercial and non-commercial air services, assignment of routes, adjudication of slots, sanctions regime, licensing and operation of aerodromes and airports, registration, identification and certification of aircraft.
Colombia is a member of the International Civil Aviation Organization and is a party to the 1944 Chicago Convention on International Civil Aviation (the Chicago Convention), ratified in 1947. Pursuant to Article 37 of the Chicago Convention, Latin American nations have implemented a system that seeks to harmonise the region's aeronautical regulations. Known as the Regional Safety Oversight Cooperation System, its members have been adopting the Latin American Aeronautical Regulations (LAR), to harmonise each Member State's regulations with those of LAR. For instance, in 2018 Colombia adopted the LAR regulations concerning operations of foreign carriers.
Access to market is open to all interested parties, subject to compliance with applicable RAC regulations. Access to market by foreign carriers and investors is mostly regulated by bilateral treaties and applicable RAC regulations, some of which are based upon the principle of open skies conditions.
Assignment of slots is governed by the RAC. Slots are assigned for air operations to or from Colombian airports that, due to high traffic volumes, are classified as Level 3, as well as for Level 1 and 2 airports where there is a likelihood of traffic congestion during certain hours of the day, the week or during certain periods. Slots are assigned to operators based on airport capacity considerations, applying principles of transparency of procedures, which must be clear and visible to all interested parties. Relevant information concerning slots must be accessible. Assignment of slots must also be based upon equality and proportionality of each operator's size and frequency of operations. When requesting slots, operators are expected to observe loyalty with respect to other competitors, avoiding practices that unduly restrict or affect operations and connections that take place at the relevant airport. Also, airport operators and air carriers must cooperate to achieve the highest efficiency in air operations to and from airports being coordinated, and avoid reserving and retaining slots that will not be used.
Concerning interests in aircraft, Colombia is a party to and ratified in due course the Cape Town Convention and the Protocol on Matters Specific to Aircraft Equipment (together, 'the Cape Town Convention'). Accordingly, aircraft lessors and financiers are entitled to the rights and remedies arising from the Cape Town Convention, which are enforceable before Colombian government agencies and the courts. A substantial proportion of commercial aircraft operated by Colombian carriers are leased from international aircraft lessors and financiers.
The principles of civil liability are set forth in the Civil Code. Claims for damages suffered outside of the realm of contracts are subject to the statutes of the Civil Code that apply to extra-contractual civil liability. The Civil Code provides that a person who has committed a wrongful or criminal act must indemnify the victim of such act.2 This principle is considered to encompass all types of damages, including material (also called 'patrimonial') damages and immaterial (also called 'extra-patrimonial' or 'moral' damages). Material damages are those that first and foremost inflict economic harm upon the victim. The Civil Code regulates the notion of indemnification of damages.3 The obligation to indemnify the victim includes both the damage proper as well as the loss of income or profit arising from the relevant damage.
Moral (also known as 'extra-patrimonial' or 'immaterial') damages are likewise recognised pursuant to the principles set forth in Article 2341 of the Civil Code. The Supreme Court of Justice has, for many years, acknowledged that aside from material damages, wrongful and criminal conduct can inflict damages that deeply affect a person. The Supreme Court has found that immaterial damages should give rise to indemnification, in spite of the fact that due to their nature, it is not possible to adopt a methodology that accurately evaluates the amount that should be paid to the victim by way of indemnification.
Beginning in 1922, the Supreme Court established the principle that moral damage would occur where a person is affected in their intimate personal rights and sentiments. The Court arrived at similar findings in a series of judgments where, in essence, it held that moral damages result where a person has suffered significant detriment to their moral patrimony, including severe anxiety, suffering and emotional distress. However, starting in 13 May 2008, the Court changed course and found that there are two different types of immaterial damages:
- subjective moral damages that refer to the moral suffering, anxiety and emotional distress that affects an individual internally as a result of harm arising from the loss of a loved one, or from injuries resulting from an accident, or from other types of adversities; and
- harm to the quality of life (daño a la vida de relación) that results in a sudden deterioration of everyday tasks that severely affects an individual's ability to enjoy life and to access pleasure, communication with others, and that places obstacles, preoccupations and difficulties. Harm to the quality of life does not have an economic value that can be readily assessed.
Cases involving harm to the quality of life usually involve personal injuries that incapacitate and severely limit a person's basic functions. In that same 2008 judgment, the Court also found that to determine the value to be paid to plaintiffs, the Court must carefully examine the obstacles, difficulties and limitations that the person faces, and arrive at a figure that will provide some degree of equitable relief to the victim, in the understanding that it is impossible to accurately assess the value of such harm.
A claim for damages requires that the plaintiff prove conclusively the damages suffered, the link between the damages and the alleged action incurred by the defendant, as well as the valuation of the resulting losses. However, in aviation accidents suffered by passengers or by third parties on the ground, the burden of proof shifts to the operator.4
Under Colombian law, only actual damages are subject to the obligation to indemnify. Compensation for damages is not intended to punish the plaintiff. Indeed, the notion of punitive damages is not provided for by Colombian civil law.
In cases where the nature of the material damages consists in the loss of revenues that would have been earned by a passenger, parties are required to provide to the court documents that prove the revenues earned by the deceased person, such as certificates concerning salaries paid to the victim.
Colombia has not implemented voluntary systems for reporting incidents by members of flight crew.
