On 4 March 2015, the Venezuelan First Instance Maritime-Aviation Court (the “Court”) found partially in favour of LG and YG (the “Claimants”) in their claim for Moral Damages against C-YV246C (the “Defendant”) for the death of their son (the “Victim”) who was being carried gratuitously on board the Defendant's private aircraft when it crashed in Colombian territory on 13 January 2007 (the “Accident”) during the course of an international private flight.
The Court awarded damages for the amount equivalent to 10.000 Special Drawing Rights (Approx. USD13.800,00) as a compensation for the death of the Victim in the Accident.
In its ruling the Court confirmed the liability regime applicable to owners of aircraft of private use (private aircraft) in the event of damages caused to passengers carried gratuitously for any cause. The judgement also confirmed that when the facts causing the damage are expressly regulated by the Venezuelan Civil Aviation Law, no moral damages can be awarded.
In a nutshell, the Court held in its decision that:
Liability of private aircraft owners is strict and not only arises from a contract of carriage by air, but also from the carriage per se, regardless of the reason why the carriage is performed;
Liability of private aircraft owners for damages caused to gratuitously carried passengers as a result of an accident or incident that took place on board the private aircraft or during the course of any operation of embarking or disembarking is limited to SDR100.000 (Special Drawing Rights) which equates to approximately USD138.000,00;
No claim for moral damages under the aforementioned circumstances are admitted;
Private aircraft owners can exclude or reduce their liability if they prove that:
They ignored the causes that resulted in the damaging accident or incident;
There were no detectable signs of it; and
They could not avoid the accident or incident in spite of having taken all necessary measures for that purpose;
In order for liability of private aircraft owners to be triggered, the claimant must only demonstrate:
That the victim was on board the aircraft or in the course of any operation of embarking or disembarking;
The loss causing the damage, that is, the accident or incident;
the direct connection between the damaging accident or incident and the damage itself (Causation);
Claimants bear the burden of proving the quantum of their claim;
Under the “iura novit curia” principle whereby “the court knows the law”, damage claims grounded on legal provisions other than those contained in the Venezuelan Civil Aviation Law, can still be admittted and awarded;
The prescription period for claims arising out of damages caused to gratuitously carried passengers as a result of an accident or incident that took place on board a private aircraft or during the course of any operation of embarking or disembarking, is 3 years pursuant to Article 107 of the Venezuelan Civil Aviation Law;
This prescription period can be validly interrupted by registering the lawsuit and its subpoena in the way set forth in Article 1.969 of theVenezuelan Civil Code;
The liability regimes contained in the Warsaw Convention 1929 and the Warsaw Convention as Amended by the Hague Protocol 1955 are not applicable to gratuitous carriage by air on board aircraft of private use;
Although owners of private aircraft can benefit from the limits of liability set forth in Article 100 of the Venezuelan Civil Aviation Law, it is uncertain whether this benefit would be lost in the cases where negligence or willful misconduct on the part of the private aircraft owner, its director(s), servant(s) or employee(s) appears as the direct cause of the damaging accident or incident, pursuant to Article 106 of the Venezuelan Civil Aviation Law.
Under a literal construction of the language of said Article 106, the benefit of limited liability in the cases of gratuitous carriage by air on board aircraft of private use should, in principle, prevail. The main reason being that the wording of said Article 106 indicates that it is intended to apply to aircraft operators engaged in air transport services in whose category non-commercial private aircraft owners do not fall.
The First Instance Maritime-Aviation Court that rendered the decision is the only court with jurisdiction to hear aviation related matters in Venezuela.
The ruling has been appealed by the Defendant and the file is currently in the Superior Court awaiting revision.