Major air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
Latvia is a state party to the following major air carrier liability treaties.
Treaties governing contracts for carriage by air
- Warsaw Convention (1929) and its Hague Protocol (1955) (effective in Latvia as of 13 February 1933 and 31 December 1998, respectively)
- Montreal Convention (1999) (effective in Latvia as of 15 February 2005)
Treaties safeguarding public interests in carriage by air
- Tokyo Convention (1963) (effective in Latvia as of 8 September 1997)
By virtue of Latvia’s membership of the European Union, the applicability of the Montreal Convention is extended to cover purely domestic air carriages alike (article 1, 2nd sentence of the 9 October 1997 Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air).
Under article 68(1) of the Latvian Constitution, the Latvian legal system follows the dualist approach, and each of the above-mentioned treaties have been implemented in the national arena through adopting a statutory instrument approving the relevant treaty.
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?
Yes. Courts acknowledge that, historically and schematically, the Montreal Convention system was designed and established as an upgrade to the prior existing Warsaw Convention system. In determining the meaning of the Montreal Convention terms, concepts, and doctrines, the courts, then, gain inspiration from the application practice of the Warsaw Convention (articles 31 and 32 of the Vienna Convention on the Law on Treaties (1969)).
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. Courts tend to rely on articles 29 and 49 of the Montreal Convention (1999), as well as articles 24 and 32 of the Warsaw Convention (1929), as amended by the Hague Protocol (1955), to reach such conclusion.
To be fair, however, one must avoid an absolute treatment of the exclusivity. Courts will be keen to note that article 24 of the Warsaw Convention maintains the exclusivity of air carrier liability with regard to damages claims out of actual air carriage only, implying the possibility of other contractual or tort claims that are governed by the conditions and limits as stemming from the otherwise applicable rules of private international law. As an example, one may imagine a claim for breach of duty of care (and the resulting injury or death) in an instance where an airline, by virtue of its marketed shuttle service, picks up the passenger from the hotel for the purposes of delivering the passenger to the airport. However, article 29 of the Montreal Convention is explicit in defining the exclusivity with reference to ‘[i]n the carriage of passengers’; this, combined with ‘according to the agreement between the parties’ (article 1(2)) ensues an absolute reading with regard to damages claims in respect of passengers under this Convention.
Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
Courts will recourse to the identical wording of articles 1(1) and 1(2) in the Warsaw Convention and in the Montreal Convention to construe the term ‘carrier’ as denoting a person or entity that undertakes to procure the relevant air carriage by virtue of its inherent commercial activities or by a specific arrangement. Various ground handling agents (whether offering passenger handling, ramp service, catering, fuelling, and so on) and other service providers (for example, maintenance and repair organisations carrying out inspection or repair works on an aircraft or its equipment) will definitely fall outside the scope.
Yet, this is without prejudice to whether, in light of the relevant circumstances and applicable private international law rules, the particular ground handling agents and other service providers (for example, repair and maintenance organisations) fall under the concept of ‘servants and agents’ - see article 25(A) of the Warsaw Convention and article 30 of the Montreal Convention.
As to the determination of the existence of ‘successive carriers’ in particular instances (article 1(3) in both treaties), courts will analyse judicial practice in other major jurisdictions, as well as be guided by scholarly writings or practice compilations. In light of the predominant practice nowadays for international air carriage to be organised along the lines of ‘contractual’ and ‘actual’ carriers, courts will be reluctant to treat chains of multiple airlines under the auspices of one booking as successive carriage, unless it can be clearly demonstrated that the airlines offered the service as a joint project. One such instance could be, for example, the ‘round-the-world tickets’ offered by global airline alliances.
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?
Courts tend to follow the practice of other major foreign jurisdictions. As such, ‘accident’ means any untypical (of a sensible and ordinary air travel experience) occasion (both active action and omission of action), as a result of which the passenger sustains the death or bodily injury. ‘Bodily injury’ means a physical damage or non-physical damage, if the latter is a direct consequence of the sustained physical damage. Purely emotional distress, moral suffering and the like are not cause for reimbursement under the damages claims. However, nervous breakdowns and suchlike fall under ‘bodily injury’, because of directly affecting human body and its systems. ‘In the course of the operations of embarking or disembarking’ encompasses, roughly put, the whole plethora of operations starting from the moment the airline’s representatives invite the passengers to board and ending with the passengers leaving the jet bridge into the terminal area.
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?
Courts are guided by judicial practice in major foreign jurisdictions. Consequently, exoneration from strict liability, as well as limitations on recoverable damages amounts (articles 20, 21 and 25 of the Warsaw Convention and articles 20 and 21(2) of the Montreal Convention) will be construed, first, in light of the objective criterion - what would be a normal course of events and reasonably required standard of care to be exercised by a prudent and diligent air carrier in the particular circumstances and the current best practice in the industry. As a further step, to determine if wilful misconduct exists on the part of the air carrier (article 25 of the Warsaw Convention as well as within the confines of article 21(2) of the Montreal Convention), the court will assess, to the maximum extent practicable and possible, the motives, intention and attitude of the carrier towards the relevant accident.
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?
Yes. Through direct effect and applicability in Latvia of the 9 October 1997 Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, a Community air carrier is obliged to advance, within 15 days after identifying the natural person entitled to compensation, the compensation for meeting the claimant’s immediate needs in proportion to the harm suffered. In the case of death, such advance amount must be no less than the euro equivalent of 16,000 special drawing rights (SDR) for each of the deceased. EU law also clarifies that any advance payment so made is not recoverable subsequently by the air carrier, unless article 20 of the Montreal Convention is found applicable or it transpires that the advance has been paid to the person not entitled to compensation at all (see article 5 of the Regulation).
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?
Once again, the courts will follow the practice of other major foreign jurisdictions. Latvian courts will be guided by principles enshrined in articles 62 and 63 of the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Courts will note that the first two jurisdiction aspects (‘ordinarily resident’ in the Warsaw Convention or ‘domicile’ in the Montreal Convention and ‘principal place of business’ in both treaties) encompass the modern private international law notion of the legal person’s domicile. The first aspect (‘ordinarily resident’) equals the sub-notion of the statutory seat (or the place of the carrier’s incorporation or registration). The second aspect - ‘principal place of business’ - is a distinct sub-notion under private international law and, for airlines in the European Union setting, will, roughly, mean ‘head office or registered office . . . within which the principal financial functions and operational control’ (according to item 97, Annex I of the Commission Regulation (EU) No. 965/2012 of 5 October 2012 that lays down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No. 216/2008 of the European Parliament and of the Council) are undertaken.
The term ‘establishment by which the contract has been made’ (according to the Warsaw Convention) or ‘place of business through which the contract has been made’ (according to the Montreal Convention) is construed broadly to cover any physical or online business ticket sales office operated either by the carrier itself or its agent or representative (including travel agencies and operators, as well as online booking services such as Travelocity.com). In its turn, ‘place of destination’ is understood to mean the destination airport under the agreement with the passenger (even if the flight did not end there because of the accident).
The fifth jurisdiction (article 33(2) of the Montreal Convention) is understood to mean the passenger’s domicile (primary or habitual residence; article 62 of the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) on the condition that the air carrier also has its physical establishment for conducting any portion of its business (not only the ticket sales), as well as is offering actual flights to or from there. It must be ascertained that the air carrier conducts any portion of its business and provides actual flights either directly (by itself) or through a code-share, interline, or similar partner.
The Latvian Civil Procedure Code does not leave room for recognition of the doctrine of forum non conveniens. Under the broad construction of article 1 of the Civil Procedure Code, Latvian courts will entertain any civil or commercial claim even between or among foreign nationals or corporations, unless the jurisdiction of the Latvian courts is precluded by rules of the European Union law (in particular, the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) or of a treaty to which Latvia is party and that contains provisions on allocation of jurisdiction.
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?
Under Latvian law, the two-year period of limitation is treated as an issue of substance rather than procedure. However, owing to article 29(1) of the Warsaw Convention and article 35(1) of the Montreal Convention defining the major aspects pertaining to the two-year period - namely, the extinguishment of the right to claim as such upon expiry of the said period, as well as the requirement to file an actual claim within the relevant period of time - leaves, on major terms, only the tolling issue under the practical scope of national law.
With regard to personal injury or death of a passenger, the relevant provision is article 1898(2) of the Latvian Civil Code. It provides that tolling occurs upon the claimant being declared, either by law or a judicial decree, under legal guardianship or custodianship. One may imagine two examples here:
- the deceased passenger has left a child, now an orphan, who, under the law, does not possess an independent legal capacity to sue and is being appointed a legal guardian; or
- the injured passenger, because of the accident, is left mentally disabled and, by virtue of a judicial decree, has been declared under the legal custodianship of its supervisor.
While the airlines will, typically, attempt to settle the issues on an expedite basis, formally, the period of limitation is extended for the whole duration of the relevant guardianship or custodianship.
The action is deemed to be filed in a timely fashion with submission of the claim to a court (that is, with filing rather than service).
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?
Courts are apt to recognise that both treaties provide for the concepts of a contractual and actual carrier. While, for the Warsaw Convention, this (in a progressive and modern interpretation) stems implicitly from article 25A (actual carrier is deemed to be the contractual carrier’s servant or agent), the Montreal Convention clearly provides a solution on this (Chapter V).
Domestic carriage – liability for passenger injury or death
What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
As noted in question 1 - by virtue of Latvia’s membership of the European Union, the applicability of the Montreal Convention is extended to cover purely domestic air carriages alike (article 1, 2nd sentence of the 9 October 1997 Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air).
Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
See question 11.
Is there any limit of a carrier’s liability for personal injury or death?
See question 11.
What are the main defences available to the air carrier?
See question 11.
Is the air carrier’s liability for damages joint and several?
See question 11.
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 11.
Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
See question 11.
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
When Latvian substantive law is determined to be applicable to the issue of recovery claims, the claiming air carrier must file a claim against the reluctant third party. Depending on the underlying instrument - out of which such reimbursement or indemnification claim arises - the suit is, accordingly, that of a contractual or tort basis claim.
Articles 108(1), 108(2), and 108(3) of the Latvian Aviation Law specifically deal only with reimbursement claims among the several air carriers (operators) involved in air crash or other instance of damages caused to the aircraft. Yet, the courts, by way of analogy, apply these principles to all reimbursement claims by the claiming air carrier against the third party that has caused or substantially contributed to the accident.
The above-mentioned provisions provide for a fault-based liability, and the idea is that the carrier (operator) at fault is the one to reimburse the other air carriers (operators). In the case of a mutual contributory fault, each carrier (operator) reimburses the other carriers’ (operators’) damages in proportion to each relevant carrier’s (operator’s) fault. In cases where there are considerable difficulties to determine the allocation of mutual fault level among the carriers (operators), each carrier (operator) contributes an equal share to the damages sustained. The law also specifically provides that each carrier’s (operator’s) fault must be proved, and there is no presumption against any of the carriers (operators) involved.
What time limits apply?
Claims under a contract must be filed, or at least a warning or reminder to the third party sent requesting the reimbursement or indemnity (article 1905 of the Latvian Civil Code), within three years (article 406 of the Latvian Commercial Law).
Tort claims have a statutory period of limitations of 10 years (article 1895 of the Latvian Civil Code).
Liability for ground damage
What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
While not being so intricate as the provisions of the Rome Convention (1952) or its Amending Protocol (1978), article 97 of the Latvian Aviation Law succinctly provides, in two paragraphs, rules for governing air carrier liability for damages caused to third parties on ground.
Latvia is not a party to the Rome Convention (1952) or its Amending Protocol (1978).
Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
Article 97 of the Latvian Aviation Law provides for the air carrier’s strict liability for damages caused to third persons on ground. The liability covers personal injury, death, and damage caused to the property.
The air carrier is liable for the duration of the flight, being defined as a period commencing when the engine power is applied for take-off and terminating after the landing run ends.
Is there any limit of carriers’ liability for ground damage?
What are the main defences available to the air carrier in a claim for damage caused on the ground?
The sole defence, as provided in article 97 in the Latvian Aviation Law, is that the damage was caused by the deliberate intention of the aggrieved third party itself. The air carrier is liable to prove this.
Liability for unruly passengers and terrorist events
What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
The matter is governed by the Warsaw Convention and the Montreal Convention.
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?
In line with the practice of major foreign jurisdictions, the Latvian courts will note the ‘reasonable measures’ defence in article 20 of the Warsaw Convention, a safeguard that is not provided under the Montreal Convention. Consequently, unless the air carrier is unable to prove that it properly abided by the industry standards in spotting and treating (to a sensible extent and in light of the risks posed) occasions of unruly passengers or terrorist events (including, in considering recourse to the powers of the captain, under the Tokyo Convention (1963), to seize and detain the suspects), the courts will treat such occasions as events outside reasonable control of the air carrier. Yet, with regard to the Montreal Convention carriage by air, no such defence is available.
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
The air carrier will, on most occasions, be entitled to rely on the limits stemming from article 21(2) of the Montreal Convention, that is, recourse to the cap of 113,100 SDR (the 2009 revision) for each passenger. The courts are, generally, keen to construe occasions of unruly passengers and terrorist events as measures outside scope of reasonable control of air carriers, unless the carrier cannot prove that it properly abided by the industry standards in spotting or dealing with those events (see question 25).
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?
For coverage by the Warsaw Convention, see question 25. For the Montreal Convention coverage, see question 26.
Consumer protection and passenger rights
Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.
By virtue of Latvia’s membership of the European Union, the following pertinent EU legal acts are directly applicable and effective in Latvia:
- 5 July 2006 Regulation No. 1107/2006 of the European Parliament and of the Council of concerning the rights of disabled persons and persons with reduced mobility when travelling by air (pursuant to article 14(1), Latvia has designated Civil Aviation Authority as the responsible enforcement body for flights to or from its territory);
- 11 February 2004 Regulation No. 261/2004 of the European Parliament and of the Council of establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91 (pursuant to article 16(1), Latvia has designated its Consumer Protection Office as the responsible enforcement body for flights to or from its territory); and
- 14 January 2009 Regulation No. 80/2009 of the European Parliament and of the Council on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No. 2299/89.
Apart from the general safeguards of consumer’s rights (with regard to merchants) enshrined in the Latvian Law on Consumer Protection, there are no other specific statutory or regulatory acts applicable to aviation-related matters.
Liability of government entities providing services to carriers
What laws apply to the liability of the government entities that provide services to the air carrier?
While the major air traffic services provider in Latvia, JSC (a wholly state-owned company) is considered (by virtue of article 42(1) of the Latvian Aviation Law) as being entrusted with performance of a delegated public function - delivering air traffic services in the Riga Flight Information Region, it is fully and directly liable for all damages caused to third parties, including air carriers and aggrieved passengers.
Latvian state liability rules, applicable also to the activities of JSC, are provided in article 92, 3rd sentence of the Latvian Constitution, as well as section 8 of the Latvian Administrative Procedure Code.
Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
Article 97 of the Latvian Administrative Procedure Code provides a general clause that state liability will be assessed on basis of principles applicable to tort liability under private law. The Latvian Civil Code requires proof of the tortfeasor’s (JSC’s) fault, as well as proof of the causation between the breach (of any applicable standard by JSC) and the alleged damages (article 1779 of the Latvian Civil Code). Article 97 of the Latvian Administrative Procedure Code specifically notes that the aggrieved party is entitled to request restitution for all types of damages, including personal injury and moral suffering.
Are there any limitations to seeking recovery from the government entity?
Responsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Yes. Article 257 of the Latvian Penal Code provides for a criminal liability (conviction and sentencing of up to eight years) in the case of a breach of significant standards of care and diligence in respect of maintenance and operation of an aircraft, or in case of a reckless accident whose consequences were death or serious personal injury.
With regard to criminal liability of legal entities (such as an air carrier), article 12 of the Penal Code prescribes the conviction, in first place, of the individual actually responsible for the offence, while, with respect to the legal entity, one or more of specific penalising measures elaborated in section VIII.1 of the Penal Code are being imposed in the legal entity (the scope and extent is determined by the judge in light of the gravity of the offence, as well as considering the risk of further incentives or opportunities to the relevant entity of committing similar offences in the future).
Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
None. The Latvian Civil Procedure Code is a distinct mechanism calling for observance of all prerequisites for satisfaction of claims raised. Obviously, the claimants will argue with evidence stemming from the criminal proceeding, but the civil judge will determine the weight, accuracy, and completeness of the presented evidence under the standards applicable to the civil procedure. No adverse presumptions will be made against the air carrier simply by virtue of the criminal proceeding. Presumption of innocence is enshrined at the level of the Latvian Constitution (article 92, 2nd sentence). Even after the final and binding conviction of a person, civil courts will reassess all evidence under their own standards, because the major objective of criminal courts is to determine if a crime has been committed by the person under trial, rather than adjudicate civil or commercial disputes. In particular, see article 96(3) of the Civil Procedure Code - the final criminal court judgment is binding on a civil court only to the extent of determination, if a certain conduct has occurred at all and whether the convicted person has committed it; in other words, the civil court will have to undergo the full qualification of the occurrence and the convicted person’s role in it in light of the provisions of applicable civil law.
See question 34 for when the claimant elects to pursue civil remedies within the criminal proceeding (trial).
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
Yes, up to the discretion of the claimant (article 7 of the Latvian Civil Procedure Code and section 26 of the Latvian Criminal Procedure Code). This is an alternative mode to launching a distinct civil claim within the confines of a civil proceeding. In Latvia, such recourse is undertaken rather frequently because claimants feel they are having a prosecutor on their side, lowering the need to engage high-profile litigation lawyers experienced in the aviation liability.
Effect of carrier's conditions of carriage and tariffs
What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?
Latvian courts fully recognise the effect of articles 23, 32 and 33 of the Warsaw Convention and articles 26, 27, and 47 of the Montreal Convention. Consequently, any provision that runs contrary to the mandatory principles established by the relevant treaty is declared invalid and inapplicable (predominantly, the courts tend to safeguard that the air carriers do not exclude their liability, or that their liability level is not set below the standards provided in the relevant treaty rules).
What damages are recoverable for the personal injury of a passenger?
Similarly to practice in major foreign jurisdictions, the Latvian courts will broadly construe concepts of damages for the personal injury in both treaties (especially in light of the limitation caps put on the air carrier’s liability) and, as long as the claimed damage will bear reasonable relation to the accident, will award them to the claimant. With regard to the Montreal Convention on air carriages, the only exception is for ‘punitive, exemplary or any other non-compensatory damages’ (article 29 of the Montreal Convention).
Generally, the right to sue is bestowed on the air carrier’s direct counterpart to the air carriage contract, namely, the passenger himself or herself. In cases where the passenger, after the accident, is left mentally disabled and has been, subsequently, appointed a legal custodian by a civil court, the claim is still pursued and maintained in the name of the passenger, but through the relevant legal custodian. To put it succinctly, then, the courts tend to consider the air carriage personal injury claims as breach of contract claims.
What damages are recoverable for the death of a passenger?
Similar to practices in other major foreign jurisdictions, Latvian courts will broadly construe concepts of damages for the death of a passenger in both treaties (especially in light of the limitation caps put on the air carrier’s liability) and, as long as the claimed damage bears reasonable relation to the accident, will award them to the claimant. With regard to the Montreal Convention, the only exception is for ‘punitive, exemplary or any other non-compensatory damages’ (article 29 of the Montreal Convention).
Generally, when the passenger has died, the right to claim damages is statutorily assigned to his or her heirs (article 1519(1) of the Latvian Civil Code), who then institute and maintain the claim against the air carrier. In exceptional cases, a public notary, upon the prospective heir’s request, may appoint a custodian over the estate before the final distribution of the estate to the heirs (articles 657-666 of the Latvian Civil Code). In such cases, it is the relevant custodian that can bring claim in the name of the administered estate, the latter being assigned status of a legal entity (article 383 of the Civil Code). To put it succinctly, the damages claim for a passenger’s death is regarded as claim for breach of contract and can be launched either by the legal heirs or (before the distribution of the estate to the heirs) by the custodian of the administered estate (appointed by a public notary).
Accident investigation and family assistance
Who is responsible in your state for investigating aviation accidents?
This function in Latvia is assigned to a separate public body - the Transport Accident and Incident Investigation Office, established in 2006.
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
By virtue of Latvia’s membership in the European Union, article 14 of 20 October 2010 Regulation No. 996/2010 of the European Parliament and of the Council on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC is fully applicable in Latvia.
No further rules, either of statutory or regulatory nature, have been adopted by Latvia in this regard.
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?
By virtue of Latvia’s membership in the European Union, article 21 of 20 October 2010 Regulation No. 996/2010 of the European Parliament and of the Council on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC is fully applicable in Latvia.
No further rules, either of statutory or regulatory nature, have been adopted by Latvia in this regard.
Are there mandatory insurance requirements for air carriers?
By virtue of Latvia’s membership in the European Union, 21 April 2004 Regulation No. 785/2004 of the European Parliament and of the Council on insurance requirements for air carriers and aircraft operators is fully applicable and has direct effect in Latvia.
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
There are 10 first (trial) level courts (one for each district), and six regional appeal courts in Latvia. After determining that the claimant is entitled to launch a claim under any of the treaties in Latvia, one must take note of the following principles to determine the exact court for filing. The claim must, generally, first be launched at the trial level court at the place of the defendant air carrier’s or its relevant affiliate’s statutory seat. In cases where the air carrier or its relevant affiliate does not have a statutory seat in Latvia, article 31.1 of the Latvian Civil Procedure Code permits filing of a claim in a first level court of the claimant’s choice. Alternatively, personal injury claims and claims related to the death of the passenger can be launched at the claimant’s domicile (if in Latvia) or the place of the accident.
What is the nature and extent of allowable discovery/disclosure?
While there is no pre-trial discovery mechanism in Latvia, under article 112 in the Latvian Civil Procedure Code, a party may request the court to order the disclosure of evidence that is in a written (paper) form and in the possession of the other party (or any third party in general). The requesting party must justify the relevance of the required evidence and argue why it considers the evidence to be in the possession of the other party. If the other party does not produce (discloses) the ordered evidence without denying that the evidence is in its possession, the court is allowed to draw adverse conclusions against the reluctant party.
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
Yes, this is provided under section 16 of the Latvian Civil Procedure Code and governs requests for preservation of evidence. As a general rule, a party to the proceeding may request the court to order the preservation of an evidence. The requesting party must justify such necessity and, in particular, argue that there is a risk that the evidence may be spoiled or otherwise tampered with to a significant extent. The claimant is entitled to request the preservation of evidence before the actual filing of the claim and, upon granting such request, the court likewise mandates the claimant to submit an actual claim within a time period of up to 30 days (the court may also order the prospective claimant to post a bond or give another safeguard to cover potential damages to the prospective defendant out of preservation of the evidence). Before deciding on any request for the preservation of evidence, the court, as a general rule, sets the oral hearing and invites all actual or potential parties to attend. The court must decide on the request within 10 days of receipt of the request. The request must be filed in a court that is hearing the main dispute; if the actual claim has not yet been filed, the preservation request must be filed at the court where the relevant evidence is located. The exact mode of preservation of an evidence is decided by the court, considering the nature of all relevant circumstances.
Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
Yes, but to a strongly limited extent with regard to attorneys’ fees. Article 44(1)(1)(c) of the Latvian Civil Procedure Code sets (in claims of €57,001 and above) the maximum amount of recoverable attorneys’ fees at 5 per cent from the amount that the court has actually awarded the claimant. Article 44(4), in turn, provides another limitation: the first (trial) level court attorneys’ fees must not exceed one half of these amounts. Finally, under article 44(5), the court is endowed with a discretionary power to grant even a lower amount than the statutory set limits, if all pertinent circumstances of the case so warrant (in particular, in furtherance of a just and proportional allocation of financial burden between the parties).
Judgments and settlement
Pre and post-judgment Interest
Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
Yes, under broadly construed article 195 of the Latvian Civil Procedure Code, the Latvian courts impose both pre- and post-judgment interest. The courts treat the interest as an inherent time value element of the money owed. While the reference to the interest is mentioned in the Civil Procedure Code, the concept is treated as a matter of substance rather than procedure in Latvia. Consequently, the interest rate and related issues are determined solely by the provisions of the applicable substantive law. When Latvian law is determined to be the applicable law to the merits, courts refer to article 1765(1) of the Latvian Civil Code, and set the interest rate at 6 per cent a year from the principal amount owed. Latvian law, generally, does not recognise the concept of compound interest, unless the parties have expressly agreed to it.
Is court approval required for settlements?
Yes (articles 227 and 228 of the Latvian Civil Procedure Code).
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?
The settlement only binds (i) its parties, (ii) with regard to the subject matter of the dispute and (iii) with regard to the relevant cause of action (this stems from article 132(1)(5) of the Latvian Civil Procedure Code). Consequently, any subsequent reimbursement claims are, formally, unprejudiced by the settlement and can be freely pursued. Yet, the relevant third party, when in knowledge of the relevant settlement, will most likely attempt to argue that the claim against it is not sufficiently warranted owing to the claimant settling for a lower amount in a related case.
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?
Yes. Latvia has adopted a specific statutory piece of legislation - the Law on International and National Sanctions, in essence, providing that all international sanctions (predominantly, those imposed and set by the European Union and the United Nations) are binding, effective, and fully applicable in Latvia. Under articles 11(1) and 11(2) of the law, the sanctions adopted by the European Union are directly applicable, while those imposed by the United Nations or other international organisations are binding upon their transposition by the specific regulations of the Latvian Cabinet of Ministers.