Major air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
The major applicable international treaties in relation to air carriage and air carrier liability that are ratified by Russia and have direct effect include:
- Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention, 1929), which became effective in the Union of the Soviet Socialist Republics (USSR) on 18 November 1934;
- by a note dated 11 February 1992, the government of Russia declared that it considered itself bound by the provisions of all international obligations concluded by the former USSR, inter alia, the Warsaw Convention and conventions referred to below, to which the former USSR was party:
- Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (the Rome Convention 1952), which became effective in the USSR on 20 July 1982;
- Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Hague Protocol 1955), which became effective in the USSR on 1 August 1963;
- 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 (the Guadalajara Supplementary Convention 1961), which became effective in the USSR in December 1983;
- Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention 1963), which became effective in the USSR on 3 May 1988;
- Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague 1970), which become effective in the USSR on 24 September 1971;
- Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal 1971), which became effective in the USSR on 19 February 1973;
- Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (Montreal 1988), which became effective in the USSR on 6 August 1989; and
- Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention 1999), which became effective in Russia on 21 August 2017.
Russia is not a party to the Guatemala City Protocol (not in force) or the Montreal Protocols Nos. 1-4 (1975).
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?
As noted in question 1, the rules of the Montreal Convention that have further developed the legal framework of the Warsaw system became effective recently and are not sufficiently tested by Russian courts. In general, Russian courts appear to interpret liability principles established by the Warsaw Convention and the Montreal Convention in the same way. However, in absence of established court practice in relation to liability for passenger injury or death, the application of these rules is yet to be tested.
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?
Russian law recognises the supremacy of an international treaty that applies to the Russian Federation over the provisions of its domestic law. Therefore, Russian courts generally consider the rules of the Montreal Convention and the Warsaw Convention (as further amended, including by Guadalajara Supplementary Convention) as the basis for air carrier liability in international carriage when an aircraft accident falls within the scope of these conventions.
In furtherance of the provisions of the Warsaw Convention and Guadalajara Supplementary Convention, Russia has adopted the Federal Aviation Rules of Air Carriage (the Rules of Air Carriage, adopted by Order of the Ministry of Transport of Russia No. 82 dated 28 June 2007), which apply to both international carriage (where it does not contradict the international treaties, including Montreal and Warsaw Conventions) and domestic carriage. Aspects of air carrier liability that are not specifically addressed in the Montreal and Warsaw Conventions (such as compensation of moral harm) are regulated on the basis of the Civil Code of the Russian Federation (the Civil Code), the Air Code of the Russian Federation (the Air Code) and other applicable Russian laws.
Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
Russian courts tend to interpret the term ‘carrier’ as covering a contracting carrier that is a party to an agreement for carriage. Based on interpretation of the Warsaw Convention by Russian courts, a ‘successive carriage’ for the purposes of article 1(3) of the Warsaw Convention does not include an actual carrier that performed carriage by virtue of authority from the contracting carrier (‘code-share’). Liability of an actual carrier is envisaged by the Guadalajara Supplementary Convention to Warsaw Convention and the Montreal Convention to which Russia is a party.
In determining whether carriage is a ‘successive carriage’ for the purposes of the Warsaw Convention, Russian courts have applied the following interpretations:
- if a carriage is performed on the basis of one carriage document, several successive air carriages are considered as a single operation whether or not there is an agreed stopping place or places; and
- international carriage is interpreted by Russian courts to constitute an air carriage that begins from a port of departure where the carriage of passengers starts and ends in a port of destination, whether or not there is an agreed stopping place during a flight (except for domestic flights). In this regard, Russian courts do not consider a ferry flight of an aircraft to a port of departure without any passengers on board as a part of ‘successive carriage’.
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?
Russian courts have not established a consistent interpretation of an accident in the context of the Montreal and Warsaw Conventions.
Basically, the concept of an ‘aviation event’ in Russian law (the Rules of Investigation of Aviation Accidents and Incidents adopted by Governmental Order No. 609 dated 18 June 1998, as amended) includes the following types of events (this interpretation would likely apply in the case of both international and domestic carriage):
- ‘aviation accident’ is an event in connection with operation of an aircraft that resulted in the death of a person located onboard or substantial destruction or total loss of an aircraft;
- ‘aviation incident’ is an event in connection with the operation of an aircraft that may involve a threat to lives of passengers or to an aircraft, provided that such threat did not result in occurrence of an aviation accident; and
- ‘operational incident’ includes incidents that occurred on the ground related to servicing, storing or transportation of an aircraft that resulted in destruction of an aircraft, as well as emergency incidents (ie, occurred in connection with the operation of an aircraft that involved hi-jacking or attempt of hi-jacking, caused death of a passenger as a result of emergency landing of an aircraft outside an airport owing to adverse environmental conditions, aviation accidents with other aircraft, etc).
Basically, bodily injury is interpreted as causing harm to the physical health of a person. Russian law sets out a classification of bodily injuries to three main types, depending on gravity of injury:
- grave bodily injury (resulted in loss of sight, speech, hearing or any organ or its functions, mental illness, permanent total occupational disability, etc);
- bodily injury of average gravity (resulted in protracted harm to health or significant disability, etc); and
- bodily injury of light gravity (resulted in temporarily damaged health or caused an insignificant disability, etc).
Interpretation of ‘bodily injury’ in the context of the Montreal Convention (including whether bodily injury covers moral harm) is yet to be tested by Russian courts.
‘In the course of any of the operations of embarking or disembarking’
Russian courts interpret an international carriage as covering the period starting from completing by a passenger of pre-flight inspection for boarding and until such passenger leaves the territory of the airdrome (ie, territory used for boarding and disembarking, which forms a part of airport) under the supervision of the relevant authorised persons of the air carrier.
When determining whether an accident occurred during embarking or disembarking, Russian courts consider, inter alia, the following factors:
- actual location and activities of the passenger at the time of an accident;
- whether an air carrier, a ground handling agent or other service provider was responsible for safety of passengers at such location and whether necessary measures were taken by such a person; and
- other circumstances that may have caused an accident, including actions or omissions of a passenger.
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?
‘All reasonable measures’
In respect of this criteria, in article 20 of the Warsaw Convention, Russian courts noted that air carrier will not be liable for ‘any negative consequences that are not directly related to their function as air carrier and are accompanying to, or indirectly connected with, an air carrier’s behaviour’.
‘Wilful misconduct’ standard and ‘no negligence’ defence
Although application of this criteria under the Montreal and Warsaw Conventions is not sufficiently tested, Russian courts may attempt to apply general interpretation of ‘fault’ envisaged by Russian law (see questions 12 and 14).
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?
Under Russian law, in the case of an air accident resulting in death or injury of passengers, the family members of deceased passengers or injured passengers as applicable (each acting as the insured under an insurance contract for harm to health or life of passengers which the air carrier is obliged to maintain) are entitled to provide the insurer with a written notice requesting advance payment of insurance proceeds. Upon receipt of such request and relevant accompanying documents as envisaged by law, the insurer will pay to such family members or injured passengers an advance payment in the amount of 100,000 rubles within three days.
The air carrier is obliged to inform the family members of deceased passengers or injured passengers (as applicable) about their respective rights and course of action as the insured under an insurance contract and will bear risks of negative consequences in cases of failure to do so.
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?
- ‘Domicile of the carrier’: there is no definitive interpretation of this concept in judicial decisions or in law. Legal doctrine defines domicile as place of location of the main executive body of the relevant legal entity.
- ‘Principal place of business of the carrier’: Russian state courts and arbitration institutions tend to interpret the principal place of business of an entity as the place of its incorporation.
- ‘Place of business of the carrier through which the contract has been made’: there is no consistent interpretation for the purposes of conventions. Under the general rule of the Civil Code, a place of execution of a contract is a place of residence or location of a person or entity that sends an offer in respect of execution of such contract (unless the contract provides otherwise).
- ‘Before the court at the place of destination’: the place of destination is interpreted as the place so indicated in the ticket.
- The ‘fifth jurisdiction’ created by article 33(2) of the Montreal Convention is not tested and is subject to interpretation by Russian courts.
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?
According to limited case law available, Russian courts seem to generally support the position that the two-year period of limitations envisaged by article 29 of the Warsaw Convention may be either suspended or interrupted (in the latter case, it starts running anew upon interruption), provided that there is a justifiable reason as envisaged by Russian law (for example, under Russian law, period of limitation of claims may be suspended if submission of a claim was prevented by emergency and irresistible circumstances). In exceptional cases (eg, grave illness), the period of limitations may be reinstated (article 205 of the Civil Code). Russian law does not recognise tolling agreements with respect to periods of limitation of claims.
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?
As noted in question 4, Russian courts do not consider a substitution of a contracting air carrier for a part of the travel by an actual carrier that performed carriage by virtue of authority from the contracting carrier (‘code-share’) as a part of ‘successive carriage’ for the purposes of article 1(3) of the Warsaw Convention. Instead, Russian courts interpret code-sharing agreements as arrangements between contracting and actual carriers aimed at joint operation of a flight and noted that such agreements do not constitute performance of contractual carrier’s obligations by a third party (ie, an actual carrier). Liability of an actual carrier is envisaged by the Guadalajara Supplementary Convention to Warsaw Convention and the Montreal Convention to which Russia is a party.
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?
General rules regulating liability for death or injury that, inter alia, apply to the air carrier’s liability for passenger death or injury occurring during domestic carriage, are contained in Chapter 59 of the Civil Code. This Chapter sets out, among other things, the grounds for liability for death or injury, rules for determining the amount of compensation and special rules of compensation to certain categories of persons (including minors and persons having lost a breadwinner).
According to the Air Code, the liability of an air carrier for passenger death or injury in domestic carriage is regulated by the foregoing provisions of the Civil Code unless ‘higher amounts of compensation for damage’ are set out in the Air Code or in a passenger carriage contract. Specifically, the Air Code sets out special rules on fixed compensations payable by an air carrier to a passenger ‘on account of compensation for damage’ that take precedence over the general provisions of the Civil Code on calculation of compensation amounts (see question 13).
It may be said that currently Russian courts do not tend to extend the scope of relevant provisions of international conventions (including the Montreal Convention) to domestic carriage, leaving regulation of this area to Russian domestic laws (known case law where courts have attempted to apply Warsaw Convention in cases involving domestic carriage is very limited). This would not be relevant to an air carriage performed within the territory of Russia where it forms part of a single ‘successive carriage’ within the meaning of article 1(3) of the Warsaw and Montreal Conventions - the Conventions should apply to such air carriage if considered to be a part of an international carriage for the purposes thereof. The discussion on the need to conform the legal regime for liability for death or injury in domestic carriage to the one established for international carriage is underway (particularly, following Russia’s accession to the Montreal Convention in 2017) but specific measures in this respect are yet to be taken.
Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
The Air Code, in line with the relevant provisions of the Civil Code, stipulates that an air carrier is liable for damage caused in the course of operation of an aircraft unless it proves that the damage was caused as a result of an act of God (force majeure) or wilful act or omission of the person having suffered the damage. This provision is generally interpreted by Russian courts and legal doctrine as imposing liability for damage (including death or injury) on a person even in the absence of such person’s fault. Air carrier’s fault would be taken into account by a court only in assessing whether a gross negligence defence can be used (see question 14).
Is there any limit of a carrier’s liability for personal injury or death?
Pursuant to the Air Code, in cases of passenger death or injury during domestic carriage, an air carrier is liable for payment of compensation ‘on account of compensation for damage’ of the following amounts (which should generally apply in lieu of the general rules on damage calculation set out in the Civil Code):
- in the case of a passenger’s death, fixed compensation of 2 million rubles; and
- in the case of passenger injury, an amount determined based on the nature and gravity of such injury determined pursuant to the standards established by an act of the Russian Government, but not exceeding the amount of 2 million rubles.
These fixed compensation amounts have been introduced to facilitate passengers’ ability to receive adequate compensation for death or injury (without having to prove the amount of compensation due under the general Civil Code rules) in a situation of an aircraft accident.
However, the compensation limits specified are not absolute. The Air Code expressly provides that, if the amount of compensation for passenger death or injury as determined in accordance with the Civil Code exceeds those compensation limits, the air carrier will not be relieved from obligation to pay to the passenger (or other entitled person) the amount of such excess. Generally, an air carrier’s liability for personal injury or death in domestic carriage would effectively be limited only by the actual damage caused to a passenger (or other entitled person), as may be determined or proved in accordance with the Civil Code.
In addition, an increased liability of an air carrier as compared with liability established by law may be contemplated by the air carrier’s contract with a passenger.
What are the main defences available to the air carrier?
In connection with a domestic carriage, an air carrier may be relieved from liability for passenger death or injury if it is able to prove that the damage was caused as a result of an act of God (force majeure) or wilful act or omission of the person having suffered the damage.
In addition, an air carrier may claim a reduction of the amount of compensation if it proves that gross negligence of a passenger contributed to the occurrence or increase of the damage. In considering a claim for reduction, a court would assess the extent of fault of both the air carrier and the passenger and the causal connection between the passenger’s actions or omissions and the occurrence or increase in the damage. Whether gross negligence of a passenger has taken place is determined on a case-by-case basis. If it is established that passenger’s gross negligence has occurred and there is no fault of an air carrier on causing the damage, the court would be required to reduce the compensation amount. However, the Civil Code expressly prohibits a full release from liability for death or injury owing to gross negligence of the affected person.
Russian law is not entirely clear on whether the gross negligence defence may be applied to reduce the Air Code fixed compensation amounts referred to in question 13. From limited court practice on this matter, it may be inferred that these compensations are a special protection for a passenger under the Air Code and are not subject to reduction owing to gross negligence. If this view is further supported by courts, the only amount that may be reduced on this basis would likely be the excess (if any) of the damage over such fixed compensations.
Furthermore, under article 1083 of the Civil Code, the gross negligence defence would not apply to reduce the following types of compensation:
- compensation due to the relevant entitled persons in case of loss of a breadwinner;
- compensation to an injured person of ‘additional expenses’ caused by the injury (such as medical costs, extra nutrition, nursing care etc); and
- funeral costs.
Is the air carrier’s liability for damages joint and several?
Russian law does not expressly provide for joint and several liability of air carriers performing a successive carriage or of a contracting and actual carrier, as far as a domestic carriage is concerned (except where the damage is caused by the carriers jointly). There is no consistent case law on this subject either.
Where the damage (including passenger death or injury) is caused as a result of an aircraft accident involving two or more air carriers (such as an airborne collision), the Air Code suggests that, as a general rule, each air carrier involved is liable for death or injury of passengers of the aircraft operated by it. Where a fault of one of the air carriers involved in the aircraft accident is established, the other air carrier involved will have recourse against the air carrier at fault.
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?
The Russian law rules and the courts’ approach to apportioning fault are summarised in question 14. These relate to the right of an air carrier to claim release from liability in cases where the damage is caused by wilful act or omission of the affected person and to apply gross negligence (contributory negligence in nature) defence to reduce the amount of compensation, subject to relevant conditions and limitations.
The application of gross negligence defence to minors and persons with limited legal capacity is not expressly regulated by Russian law, neither is it sufficiently tested by Russian courts. On complex interpretation of relevant Civil Code provisions, it may be argued that, where the damage is caused by such a person, the defendant may try to prove that this happened through gross negligence of the relevant supervising person (such as tutor, orphan home or asylum officer, etc).
Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
If a carriage does not fall under the regulation of article 35 of the Montreal Convention, pursuant to article 208 of the Civil Code, claims for compensation of damage caused by death or injury of a person are not subject to the statute of limitations, provided that claims brought upon the expiry of three years after a person has become entitled to compensation will be satisfied by a court only for the period not exceeding three years preceding the claim (this limitation is likely to apply only to periodic compensation payments). A court may recover compensation for a period longer that three years prior to the claim if the defendant’s fault in non-payment or insufficient compensation to the entitled person is established.
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
If defendant is found liable, he or she obtains right of recourse to a third party who is liable to the defendant for all or part of the plaintiff’s claim. It means that the defendant may seek recovery from the third party in a separate proceeding.
The defendant may file an application to draw such a third party into the case against the defendant to act on the side of the defendant (article 43 of the Civil Procedural Code of the Russian Federation (the Civil Procedural Code) and article 51 of the Arbitrazh Procedural Code of the Russian Federation (the Arbitrazh Procedural Code)).
What time limits apply?
Article 35 of the Montreal Convention provides that a claim may be brought within two years. For third-party claims not falling under the Montreal Convention, Russian courts would generally apply a period of three years starting from the date of the discharge of defendant’s obligation to pay a contribution (article 200(3) of the Civil Code). Articles 126 and 128 of the Air Code provide for time periods for filing claims for compensation of harm or damages to the air carrier and rules for the calculation of applicable statutes of limitation.
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?
Under Russian law, air carriers are generally liable for the damage caused during air carriage, which starts from the moment of the aircraft passenger passing the preflight examination for boarding and ends when the aircraft passenger leaves the airfield under the surveillance of the air carrier’s authorised persons (article 117(2) of the Air Code).
If an aircraft accident occurs during domestic carriage, the injured passengers may claim for compensation of up to 2 million rubles (circa $30,000 as of September 2018). The exact sum is determined based on the extent of injury in accordance with the regulations adopted by the government (article 116 of the Air Code). In the case of international carriage, the Montreal Convention is applicable.
If it is proved that the harm inflicted exceeds the compensation sum, then air carrier will additionally reimburse the passenger in the part exceeding the size of compensation.
Under Russian law, the passengers are also entitled for compensation of moral harm.
Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
Subject to defences described in question 23, generally, the main basis for air carrier’s liability is set out in article 116(2) of the Air Code and article 1079(1) of the Civil Code.
Is there any limit of carriers’ liability for ground damage?
As noted in question 20, if the harm inflicted exceeds the compensation sum, the passenger will be additionally reimbursed in the part exceeding the amount of compensation. The air carrier’s liability in this case is limited to the actual inflicted damage.
What are the main defences available to the air carrier in a claim for damage caused on the ground?
The air carrier should also be able to invoke gross negligence, if the relevant conditions are satisfied (see question 14).
As set forth in the article 116(2) of the Air Code, an air carrier is liable unless it proves that the damage has been caused as a result of force majeure circumstances or because of negligence (intent) of the person who suffered the damage or loss.
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 framework of the laws applicable to unruly passengers or terrorist events includes the following:
- Montreal Convention for the Unification of Certain Rules for International Carriage by Air (1999) and Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (1925) - in the case of international carriage;
- Tokyo Convention on Offences and Other Acts Committed on Board Aircraft (1963);
- Convention on Unlawful Seizure of Aircraft (Hague, 1970);
- Montreal Convention on Unlawful Acts against the Safety of Civil Aviation (1971);
- Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1988); and
- Air Code and other applicable Russian legislation, including the Federal Law on Counter-Terrorism No. 35-FZ (the Law on Counter-Terrorism).
Russia has recently developed its legislation in respect of unruly passengers. In particular, the amendments to the Air Code that came into force on 4 June 2018 entitle the air carrier to include an unruly passenger, who was found liable for an administrative offence on board, on a register of passengers whose carriage is limited (‘black list’). Such black lists are maintained by each air carrier separately and an air carrier can decline to execute a carriage agreement with a listed passenger (ie, refuse to provide air carriage service to him or her).
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 respect of international carriage, the liability rules set out in the international conventions (including the Montreal and Warsaw Conventions) will apply. In the case of domestic carriage, the Air Code and other Russian laws will apply (see questions 5, 12 and 21).
In addition, the Law on Counter-Terrorism (article 18), which would likely apply to both international and domestic carriage, sets out the following main principles of compensation for damage caused by an act of terrorism:
- The Law on Counter-Terrorism envisages fixed amounts of compensations (as described in question 26) in the case of injury or death caused by an act of terrorism. This compensation is paid to the injured persons by the state authorities and would likely apply in addition to the relevant compensation envisaged by the international conventions and Russian laws.
- The injured persons are also entitled to claim monetary compensation for injury or death, including compensation for moral harm, from the person who has committed an act of terrorism or his or her family members (if their property or assets were acquired as a result of terrorist activities), presumably in accordance with general principles of damage compensation under the Civil Code. In this case, the period of limitation of claims will not apply. These claims would likely be conducted or supported by Russian state authorities.
- The compensation for injury or death of person who has been involved in an act of terrorism is not recoverable.
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
According to Governmental Order No. 110 ‘On provision of appropriations from reserve fund of the Government of Russia for prevention and liquidation of consequences of emergency events and natural disasters’ dated 15 February 2014 (Order No. 110), compensation to the injured persons for an act of terrorism are as follows:
- for the death of a person caused by an act of terrorism, fixed compensation of 1 million rubles plus funeral costs;
- for injury, an amount determined based on the nature and gravity of such injury, pursuant to Order No. 110 - 400,000 rubles for grave injury or injury of average gravity and 200,000 rubles for injury of light gravity; and
- compensation of 100,000 rubles to a hostage, if no injury has been caused to him or her.
Presumably, the injured persons are entitled to claim for the compensation of damages in excess of the above fixed amounts from the person who has committed an act of terrorism or his or her family members (see question 25).
With respect to injury or death caused by an unruly passenger, see questions 13 and 22.
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?
See questions 6, 14 and 23.
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.
The main laws and regulations in this sphere are as follows:
- Civil Code;
- Air Code;
- Law No. 2300-1 dated 7 February 1992 On Consumer Rights Protection (Law No. 2300-1);
- Rules of Air Carriage adopted by the Order of the Ministry of Transportation of the Russian Federation No. 82 dated 28 June 2007 (Order No. 82); and
- Order of the Ministry of Transportation of the Russian Federation No. 24 dated 15 February 2016 (Order No 24).
In general, rights of persons with reduced mobility when travelling by air are protected under article 106.1 of the Air Code. Particularly, these people are entitled to assistance at airport and assistance by air carriers. Standards of providing such services are described in the Order No. 24.
In the case of cancellation or delay of flight, depending on the waiting time, the passengers should be provided with refreshments, meals, communication facilities, hotel accommodation and transportation to the hotel (the Right to Care) (clause 99 of Order No. 82). It is not obligatory for air carriers to offer re-routing on an alternative flight; however, they often do so. Passengers also have certain compensation rights pursuant to applicable legislation (including compensation of moral harm).
There are no specific rules governing tarmac delay, which means that the passengers waiting for takeoff on board will be provided with the facilities under clause 99 of Order No. 82.
Russian courts hold that when an air carrier denies boarding and arranges for an alternative flight, the passengers have the Right to Care and are entitled to compensation. It should be noted that amendments to Russian legislation prescribing an air carrier’s liability for overbooking may be adopted soon.
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?
The government renders services to air carriers through state-owned legal entities (enterprises). Owing to the contractual nature of the relationship between air carriers and state-owned legal entities providing services to the air carriers, liability of the latter is governed by provisions of the civil legislation concerning discharging obligations under the contract.
Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
Unless agreed otherwise, while performing the business activity, all legal entities, including state-owned ones, incur liability based on the general presumption of guilt unless it is proved that a particular obligation could not be performed owing to force majeure circumstances (article 401(3) of the Civil Code).
Are there any limitations to seeking recovery from the government entity?
In civil relationships, state-owned legal entities and private legal entities are supposed to act on an equal basis; therefore, there should be no limitations to seeking recovery from such enterprises. At the same time, any recovery from a governmental entity would be subject to budget limitations. Furthermore, the Civil Code provides that a foreign law will not be applicable in ‘exceptional cases’ when the consequences of its application would be in obvious conflict with the ‘fundamentals of law and order (public order) of the Russian Federation’.
Responsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Only individuals are subject to criminal liability under the Criminal Code of the Russian Federation.
Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
Not applicable. See question 32.
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
Not applicable (see question 32). However, a criminal proceeding may serve as a basis for a civil claim on recovery or compensation.
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?
The carrier’s conditions of carriage or tariffs should be given effect by the Russian courts, provided that they do not contradict the general rules of air transportation and relevant provisions of Russian and international law and do not impair the level of passenger service.
What damages are recoverable for the personal injury of a passenger?
In respect of a domestic carriage, the following rules will apply:
- In accordance with the Civil Code, the main types of damages to be recoverable for the personal injury of a passenger are: (i) monetary compensation for injury or death; and (ii) compensation of moral harm. Monetary compensation in case of passenger’s injury or death are calculated in accordance with the general rules on damage calculation set out in the Civil Code and the Resolution of the Russian Government No. 1164 dated 15 November 2012 ‘On affirming rules on calculation of insurance compensation in personal injury cases’. Moral harm is compensated for moral or physical pain and suffering of a passenger caused in connection with an air accident and is awarded at the discretion of the court. Compensation to an injured person can also include the recovery of ‘additional expenses’ caused by the injury (such as medical costs, extra nutrition and nursing care).
- In the case of a passenger’s injury or death, an air carrier is liable for payment of compensation ‘on account of compensation for damage’ of an amount determined based on the nature and gravity of such injury determined pursuant to the standards established by an act of the Russian government, but not exceeding the amount of 2 million rubles. If the amount of compensation for passenger injury or death in accordance with the Civil Code exceeds this compensation limit, the air carrier will not be relieved from the obligation to pay to the passenger (or other entitled person) the amount of such excess (see questions 11-13).
- A claim for monetary compensation for injury or death or compensation of moral harm is conducted by an injured passenger or, in case of passenger’s death, by his or her family members or the relevant entitled persons in the case of loss of a breadwinner or dependant.
- In respect of an international carriage, the provisions of international conventions will apply.
What damages are recoverable for the death of a passenger?
In respect of a domestic carriage, the following rules will apply:
- In accordance with the Civil Code, the main types of damages to be recoverable for the death of a passenger are: (i) monetary compensation for injury or death; (ii) compensation of moral harm; and (iii) funeral costs. In the case of the death of a passenger, monetary compensation for loss of support in cases of dependency are calculated on the basis of the income of the deceased and the number of dependants. Moral harm is compensated for pain and suffering of a passenger and are awarded at the discretion of the court. The maximum funeral cost is 25,000 rubles.
- Furthermore, in the case of passenger death, an air carrier is liable for payment of compensation ‘on account of compensation for damage’ of 2 million rubles, and the advance payment of 100,000 rubles is obligatory if requested and should be paid by the air carrier or its insurer within three days after the receipt of the application together with necessary documents. If the amount of compensation for passenger death, in accordance with the Civil Code, exceeds this compensation limit, the air carrier will not be relieved from the obligation to pay to the passenger (or other entitled person) the amount of such excess (see questions 11-13).
- In respect of an international carriage, the provisions of the international conventions will apply.
Accident investigation and family assistance
Who is responsible in your state for investigating aviation accidents?
The air accident investigation commission formed by the Interstate Aviation Committee (IAC) and the Federal Air Transport Agency are responsible for investigating civil aviation accidents and incidents, respectively. The purpose of the investigation is to determine the reasons for an aviation accident or incident and take measures to prevent them in the future - the ascertainment of guilt and responsibility for an aviation accident or incident is not the purpose of such an investigation.
The Russian law enforcement authorities are responsible for preliminary criminal investigations of civil aviation accidents and incidents within initiated criminal proceedings before the trial.
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
The accident investigation reports of the air accident investigation commission usually become publicly available and published on the official website of the IAC, and the court at its own discretion decides whether the accident investigation reports are admissible as evidence and can be used in civil litigation or criminal proceedings.
The flight data recorder information and cockpit voice recordings may be submitted as evidence in civil litigation or criminal proceedings if the court, at its own discretion and based on applicable laws, decides that such materials are admissible as evidence.
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?
There are no specific laws or regulations addressing the provision of assistance to passengers and their family after aviation accidents or incidents. However, depending on the nature and causes of an aviation accident or incident and the type of carriage (ie, domestic or international), this matter is covered by different international and Russian laws (eg, the Montreal Convention, the Air Code, the Civil Code), as described in more detail in questions 7 and 11-13.
Are there mandatory insurance requirements for air carriers?
The Air Code (articles 131-135) requires the following mandatory insurances to be in place:
- third-party liability insurance;
- insurance of life and health of each crew member while performing their personal duties on board the aircraft;
- civil liability insurance for any harm caused during air transportation to health, life and goods or luggage of any passenger;
- the air carrier should also insure its liability for any loss, harm, damage of any carried goods (for the amount not less two minimal wages per kg); and
- the operator is also required to insure its liability for any harm that may be caused by ‘aviation works’ (that includes, among others, any works in agricultural sector, construction, environmental protection, medical assistance and where such works are performed with the use of civil aircraft).
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
The Russian judicial system comprises the Constitutional Court of the Russian Federation (as well as constitutional courts of the territorial subdivisions of the Russian Federation), arbitrazh (commercial) courts and courts of general jurisdiction. It should be noted that ‘state arbitrazh courts’ or ‘arbitrazh courts’ refer to the Russian state commercial courts, but not to ‘arbitration’ as it is understood in the Western jurisdictions. For clarity’s sake, we will refer to these courts as ‘commercial’ courts.
The competence of the Constitutional Court includes review of legal acts of the Russian Federation as to their conformity with the Constitution of the Russian Federation. Decisions of the Constitutional Court of the Russian Federation must be followed by all Russian courts. Commercial courts deal with commercial (economic) disputes and other cases connected with entrepreneurial activities involving individuals having the status of individual entrepreneurs or legal entities (as well as some other categories of disputes, for example, bankruptcy cases and corporate disputes), whereas courts of general jurisdiction resolve criminal cases and civil law cases not connected with entrepreneurial activities involving individuals and legal entities. Based on the foregoing, aviation disputes not connected with entrepreneurial activities (eg, personal injuries or harm) would fall into the competence of courts of general jurisdiction.
Until recently, the Supreme Court of the Russian Federation headed the system of general jurisdiction courts while the Supreme Commercial Court (SCC) headed the system of commercial courts. The SCC was dissolved and ceased to exist on 6 August 2014 and its powers were transferred to the Supreme Court of the Russian Federation, which is currently the highest judicial body of federal courts of general jurisdiction and commercial courts.
Russian higher courts may adopt clarifications on the interpretation of certain legal provisions. Such clarifications from the Plenum or Presidium of the SCC RF and (since the merger) Plenum or Presidium of the Supreme Court may be used by the lower arbitrazh courts in Russia as grounds in the reasoning of the court decisions (article 170 of the Arbitrazh Procedural Code). Rulings and resolutions of the SCC RF and the Supreme Court rendered in specific cases are usually used by lower courts as guidance for interpretation of law and resolving similar cases. The Supreme Court of the Russian Federation has a right to issue binding clarifications to the lower commercial courts on matters of judicial practice.
What is the nature and extent of allowable discovery/disclosure?
Discovery is governed by applicable Russian procedural rules. Under a general rule, a court, while preserving its independence, should assist the parties in enforcement of their rights, full investigation of evidence and establishing the actual circumstances of the case in question. Russian courts are allowed to consider, and base their decisions on, evidence that has been obtained in accordance with all applicable legal requirements. There are several sources of evidence, including witness clarifications, expert reports, among others. The court may suggest that the parties provide additional evidence (and, if necessary, assist with collecting evidence by issuing specific requests). Written evidence (documents) should be submitted in original form or properly certified copies.
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
Russian procedural rules (article 72 of the Civil Procedural Code) require written evidence to be kept with all case materials. After the relevant court judgement enters into force, as per request of the party that provided such evidence, original documents may be returned to the relevant party. Material objects (including audio and video recordings) are kept in the court; the ones that cannot be delivered to the court should be photographed, described and safely kept at their location and at the place prescribed by the court.
Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
As a general rule, litigation costs are recoverable by the party in whose favour the court decision is taken from the other party. If the relevant claim was partially satisfied, the litigation fees are payable by each party pro rata to satisfy the claim. Litigation fees generally include state duty and other expenses in connection with the court proceedings (such as expert remuneration, translation fees, travel expenses, etc).
Attorneys’ fees are recoverable by the party in whose favour the court decision is taken from the other party in ‘reasonable amounts’. The Supreme Court in its Resolution No. 1, dated 21 January 2016, clarified that attorneys’ fees are deemed ‘reasonable’ if the relevant amount matches the price payable in analogous circumstances for similar services. It was also recommended to take into account the nature of the claim, claimed amount, scope of services, timing required for preparation of procedural documents, among others.
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?
Any interest is awarded in appropriate cases and only when permitted by law. In such cases, the rate of interest would be determined based on various factors, including contract terms and applicable law. The rate of judgment interest may depend on the nature of the judgment (ie, contract, tort, etc). As described in question 49, the debtor’s failure to comply with the voluntarily implementation of the court decision, enforcement through court bailiffs would entail additional payments and liability (including an ‘enforcement charge’).
Is court approval required for settlements?
Russian procedural legislation (articles 49(4) and 139 of the Arbitrazh Procedural Code and article 39 of the Civil Procedural Code) allows that parties in the dispute at each stage of the process (as well at the enforcement stage) may enter into a settlement agreement.
The settlement agreement will be approved by the court considering the claim at the relevant time. The court may refuse to approve the settlement agreement if it finds that the proposed settlement is against the law or affects a third-party’s rights.
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?
Generally, a person who has settled a claim with one debtor, may still claim a contribution or compensation from other parties if such parties are liable for the same damage, provided that: (i) any such claim will be subject to applicable limitation periods; and (ii) there will be no double recovery for the same damage.
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?
If the relevant party (debtor) refuses to voluntarily execute a court ruling on the enforcement of a foreign arbitral award or a foreign judgment, the creditor may apply to the court for the issuance of a writ of execution and present it to the court bailiff. The court bailiff must initiate the enforcement proceedings within three days of receiving the writ of execution. Based on the provisions of the Federal Law on Enforcement Procedure (the Enforcement Law), the enforcement of a writ of execution, generally, should take no more than two months. However, this estimation does not take into account the possibility of postponements of enforcement actions on the grounds provided in the law, such as the filing of a counterclaim, the existence of objective impediments to enforcement, among others.
Enforcement proceedings include the granting of time (normally up to five days) to a debtor to voluntarily implement the court decision. If the debtor does not comply, the court bailiff must enforce the claims as provided for in the writ of execution. Such enforcement will involve the imposition by the court bailiff of an ‘enforcement charge’ on the debtor of 7 per cent of the value of claim or the value of the charged property, but in any event not less than 10,000 rubles (or 50,000 rubles for the ‘non-property’ claims).
Enforcement of the writ of execution should, generally, not require any additional payments by the person seeking the enforcement; however, they may be required to advance certain amounts necessary to cover the costs associated with the enforcement procedure. These advanced payments, however, should be reimbursed by the debtor (or claimed from the debtor) after the enforcement proceedings are completed.
Pursuant to the Enforcement Law and the Code of the Russian Federation on Administrative Misdemeanors, the debtor’s failure to comply with the lawful requirements of the bailiff or any other breach of the Enforcement Law may result in the imposition of a fine on the debtor’s key managers and the debtor itself. Pursuant to the Criminal Code of the Russian Federation, malicious non-compliance with a court order or writ of execution may lead to criminal prosecution of the debtor’s key managers.
Updates and Trends
Updates & Trends
Updates and trends
The implementation of the rules of the Montreal Convention in national legislation related to domestic carriage is being broadly discussed in Russia. However, the relevant legislative actions are yet to be taken.