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Applicable treaties

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 United Mexican States (Mexico) is party to the following air law treaties related to carrier liability for passenger injury or death:

  • Convention for the Unification of Certain Rules Related to International Carriage by Air (the Warsaw Convention), effective in Mexico since 5 May 1933;
  • Convention on International Civil Aviation (the Chicago Convention), effective in Mexico since 4 April 1947;
  • Convention on Damage Caused by Foreign Aircraft to Third Parties on The Surface (the Rome Convention) signed by Mexico on 7 October 1952 but not ratified so it is not effective in Mexico;
  • Protocol that Modifies the Convention for the Unification of Certain Rules Related to International Carriage by Air (the Hague Protocol), effective in Mexico since 1 August 1963;
  • Supplementary Convention for the Unification of Certain Rules Related to International Carriage by Air (the Guadalajara Supplementary Convention) effective in Mexico since 1 May 1964;
  • Convention on Offences and Certain other Acts Committed on Board Aircraft (the Tokyo Convention), effective in Mexico since 12 December 1969;
  • Protocol to amend the Convention for the Unification of Certain Rules for International Carriage by Air (the Guatemala City Protocol), signed by Mexico on 21 July 1971 but not ratified so it is not effective in Mexico;
  • Protocol to amend the Convention for the Unification of Certain Rules for International Carriage by Air No. 1, effective in Mexico since 15 February 1996;
  • Protocol to amend the Convention for the Unification of Certain Rules for International Carriage by Air No. 2, effective in Mexico since 15 February 1996; and
  • Convention for the Unification of Certain Rules for International Carriage by Air, effective in Mexico since 4 November 2003.

International treaties are an integral part of the Mexican legislation, making them directly effective without the need of enacting secondary regulation.

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. The courts in Mexico interpret the similar provisions of the Montreal and Warsaw Conventions in the same way.

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?

No. Despite the existence of the pre-emptive effect provided for under articles 29 and 24 of the Montreal and Warsaw Conventions, which intends to completely pre-empt claims under the general legal framework applicable in Mexico for any such claims that fall within the scope of the Conventions, in recent years, and as a consequence of the reforms to the Political Constitution of the United Mexican States (CPEUM), the Supreme Court of Justice has taken a notable departure from such principle in favour of the pro homine principle. As a consequence of this, claims can be brought before the courts in Mexico under the basis of any such law, which provides for a more favourable protection of the passenger.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

To date, there are no judicial precedents that provide for the definition nor the scope of term ‘carrier’ under the Montreal or Warsaw Conventions. However, article 2 of the Civil Aviation Law defines the term ‘service provider’ as the concessionaires and permit holders that render air transport services. Additionally, article 2(V) of the Rules to the Civil Aviation Law defines ‘air operator’ as an entity that owns and operates an aircraft pursuant to the terms of the Civil Aviation Law.

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?

Likewise, to date, there are no judicial precedents that provide for the definition or scope of the terms ‘accident’, ‘bodily injury’ or ‘in the course of any of the operations of embarking or disembarking’ under the Montreal or Warsaw Conventions. However, such terms are defined in secondary regulations as follows.

‘Accident’ is defined within article 79 of the Civil Aviation Law as ‘any event causing death or serious injury to persons on board the aircraft or causing structural damage or breakage to the aircraft, or for which the aircraft disappears or is in an inaccessible location’.

The term ‘bodily injury’ is defined in article 288 of the Federal Penal Code as ‘not only the wounds, abrasions, contusions, fractures, dislocations, burns, but any alteration in health and any other damage that leaves a material trace in the human body, if those effects are produced by an external cause’.

Lastly, ‘in the course of any of the operations of embarking or disembarking’ is defined in article 69 of the Civil Aviation Law as ‘the moment when the passenger enters the aircraft until it has descended from it’.

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?

The standard applied for the ‘no negligence’, ‘all reasonable measures’ and ‘wilful misconduct’ defences is subjective.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

No, our law does not provide for the requirement of advance payments to be made for injured passengers nor to the family members of deceased passengers following an aircraft accident.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

In general terms, the applicable jurisdiction will be that freely agreed by the parties, who must expressly and undoubtedly resign to any other pertinent jurisdictions pursuant to applicable law. In this regard, the alternative jurisdictional forums provided by in articles 33 and 28 of the Montreal and Warsaw Conventions would be applicable and available to the parties.

With regard to court’s position with regard to the doctrine of forum non conveniens, Mexico follows the traditional Roman-Germanic approach with respect to jurisdiction. In this way, the principles that regulate competition are strict and rigid and discourage discretion on the part of the court that at a given moment must assume jurisdiction over a specific issue. In this regard, even though such principle is not expressible prohibited, our legal framework discourages activities that could give rise to forum-shopping.

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?

As a general rule, all statutes of limitation in Mexico are subject to tolling (suspension and interruption) as provided for in articles 1158, 1165 and 1168 of the Federal Civil Code.

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?

With regard to liability, it is possible for courts to determine the existence of joint liability in the case of commercial agreements in which the operating and contracting carriers are different.

Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The applicable legal framework that governs liability of air carriers for passenger injury or death in domestic carriage consists of the Civil Aviation Law; the Regulation to the Civil Aviation Law; the Federal Civil and Penal Code; and the Federal Labour Law for the calculation of the applicable compensations.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

Pursuant to article 1913 of the Federal Civil Code, the nature of an air carrier’s liability is strict.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

As previously mentioned, the Supreme Court of Justice has issued a ruling suppressing any possible limits on carrier’s liability, whether statutory or contractual, as the Court has interpreted that such limitations breach articles 1 and 4 of the CPEUM by limiting the liability of the carrier without pursuing a constitutionally valid purpose. However, the carrier’s liability is limited if damage occurs as a result of fault or inexcusable negligence of the victim.

Main defences

What are the main defences available to the air carrier?

Depending on the type of action filed by the passenger, the air carrier will be able to choose an ordinary remedy or an amparo procedure. The ordinary remedies available for carriers are:

  • an appeal:
  • a revocation remedy; or
  • an indirect amparo claim.

In all of the above, a carrier can try to show the fault or negligence of the passenger.

Damages

Is the air carrier’s liability for damages joint and several?

The air carrier’s liability for damages is joint and several.

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?

There are no special rules for addressing fault. If the carrier is able to prove fault or negligence from the passenger, he or she will not be eligible for any compensation. The same general rules apply to minors and passengers with reduced mental capacity.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The time limit for filing an action is two years. The prescription of such action is interrupted by the filing of the suit according to article 1168 of the Civil Code, and the action is duly promoted according the courts if it is within two years of the accident taking place.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

The applicable procedure to seek recovery from another party for contribution or indemnity is an ordinary civil procedure.

Time limits

What time limits apply?

The statute of limitation is two years.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

The applicable legal framework for liability of the air carrier for injury or damage caused to a person on the ground is the Federal Civil and Penal Codes.

Nature and conditions of liability

What is the nature of, and conditions for, an air carrier’s liability for ground damage?

It is relevant to assess this matter on a case-by-case basis, as the grounds for air carrier liability could arise from either strict or fault-based liability.

Liability limits

Is there any limit of carriers’ liability for ground damage?

For injuries or death, the applicable limits are provided in the Federal Civil Code, which remits to the Federal Labor Law. In the case of moral damages, no limitations apply according to article 1916 of the Federal Civil Code.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

As provided for in question 14, the main defence available to the air carrier will depend on the type of action filed by the passenger. In general terms, air carriers will be able to choose an ordinary remedy or an amparo procedure.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

The Federal Civil Code, Civil Procedure Code, Convention on Offences and Certain other Acts Committed on Board Aircraft (Tokyo Convention) and the mandatory circular issued by the Directorate General of Civil Aeronautics (DGAC) regarding the requirements and preventive security measures that air carriers must fulfil in the case of illicit interference on board an aircraft.

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?

It is relevant to assess this matter on a case-by-case basis, as the grounds for air carrier liability could arise from either strict or faultbased liability.

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

For injuries or death, the applicable limits are provided in the Federal Civil Code, which remits to the Federal Labor Law. In the case of moral damages, no limitations apply according to article 1916 of the Federal Civil Code.

Main defences

What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?

Similar to our response to question 14, the main defence available to the air carrier will depend on the type of action filed by the passenger. In general terms, the air carrier will be able to choose an ordinary remedy or an amparo procedure.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

As per the amendments to the Civil Aviation Law and the Consumer Protection Law of 2017, a broader legal framework for the protection of consumers has been enacted in Mexico.

The following is a list of the most relevant dispositions found in the Civil and the Consumer Protection Law:

  • an adequate and complete breakdown of all applicable costs that compose the fare and the applicable terms and restrictions must be available and conveyed to the passengers at all time;
  • travellers with disabilities can carry instruments related to their disability without additional costs;
  • minors under two years old are not subject to the payment of a ticket, but do not have the right to a seat or baggage allowance. However, a stroller can be carried at no additional charge;
  • for all roundtrips or fights with connections, passengers can use each segment independently. That is, if a passenger misses a flight, whether internationally or not, carriers cannot refuse boarding in any of the remaining segments, if the passenger informs the carrier at least 24 hours prior to the time of departure of each segment;
  • if there is delay for causes attributed to the carrier, the passenger must be compensated pursuant to the following:
    • if the delay exceeds one hour but is less than four hours, the compensation will be according to the company’s policies, which must include at least discounts for subsequent flights and meals. It must also offer access to phone calls and emails;
    • If the delay exceeds two hours but does not exceed four, the compensation must be of at least 7.5 per cent of the price of the ticket; and
    • if it exceeds four hours, the flight can be considered as cancelled and the passenger is entitled to the corresponding compensation;
  • if there is a cancellation for causes attributed to the airline, the airline will have to provide the following:
    • reimbursment of the ticket; and
    • a substitute transportation on the first available flight, and, while waiting, access to telephone calls and emails, food, transportation and overnight, if necessary, or transport at a later date that suits the passenger. In the first and last case, passengers will also receive compensation of 25 per cent of the price of the ticket; and
  • in case of overbooking, the airline must request volunteers to waive the boarding, in exchange for benefits agreed with the passenger. People with disabilities, the elderly, unaccompanied minors and pregnant women have priority.

Additionally, the DGAC has issued secondary regulations in the form of Mandatory Circular CO SA-09.2/13, which provides the guidelines for the accessibility of passengers with disabilities or reduced mobility to airport infrastructures and air transport services.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

For all liability matters pertaining government entities, the applicable law is the Federal Law of Patrimonial Responsibility of the State.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

Pursuant to article 3 of the Federal Law of Patrimonial Responsibility of the State, the nature of government liability is fault-based.

Liability limits

Are there any limitations to seeking recovery from the government entity?

In accordance with article 25 of the Federal Law of Patrimonial Responsibility of the State, the right to claim compensation prescribes in a year, which will be computed from the following day in which the patrimonial injury takes place. When there are physical or psychological damages as well, the statute of limitations will be two years.

No limitations arise as a consequence of government immunity.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

As per the reforms to the Federal Criminal Code of 2014, air carriers can be independently criminally liable for aviation accidents, in addition to any possible responsibilities that can be imputed to the representatives of the undertaking.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

The Supreme Court of Justice has stated that, despite the different natures of a criminal proceeding and a civil action, once the repair of damage has been ordered as a consequence of a criminal proceeding, as a general rule, the civil liability of the defendant or a third party cannot be subsequently demanded in a civil proceeding disconnected from the criminal proceeding, since in both cases the civil liability that is claimed in the criminal process arise from the same action and the same damage. In this regard, it should be noted that subjective civil liability derived from a crime does not have a ‘different nature’ from objective civil liability. However, in the aforementioned case, it will be possible exceptionally to resort to civil proceedings when it can be clearly shown that the civil legislation allows a greater extent of compensation compared with criminal legislation, in such a way that the action for reparation of damage in civil proceedings may result in greater economic benefit as a result of more favourable regulation for the victim of the quantification of the damage

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

Yes, as provided for under article 30, the repair of the damage caused must be comprehensive, adequate, effective, proportional to the seriousness of the damage caused and the affectation suffered. This article further includes compensation as a means to repair the damages caused to the passenger.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

In general terms, the conditions of carriage and the applicable tariff are binding on the passengers. With regard to the terms and conditions, it is important to mention that these will be binding if they are consistent with the applicable legal requirements. It is important to mention, however, that all matters will be assessed in court on a case-by-case basis.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

The damages that are recoverable for personal injury of a passenger under Mexican law are personal injury, property damage and moral and punitive damages. The standing for the claim will fall on the injured passenger, who is also the ultimate beneficiary of such claim. In the case of minors or passengers with reduced mental capacity, the standing to claim will fall in the tutor or custodian and the beneficiaries will again be the passenger.

What damages are recoverable for the death of a passenger?

The damages that are recoverable for death of a passenger under Mexican law are personal injury and moral and punitive compensation. In this case, the standing of the claim will fall on the heirs of the victim as provided under article 1915 of the Federal Civil Code. If no heirs have been appointed, the beneficiary will have to be determined following the standards provisions provided for under the Federal Civil Code.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

Pursuant to article 81 of the Civil Aviation Law, accident investigations in Mexico fall under the jurisdiction of the Ministry of Communications and Transportation through the General Directorate of Civil Aviation.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

All data and evidences generated from the accident reports, flight data recorder information of cockpit voice recordings and any other information generated from the investigation conducted can be used in litigation procedures at the request of the parties.

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?

Mexico has not enacted any particular laws or regulations addressing the provision of assistance to passengers and their family in the event of an aviation accident.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Yes. The Civil Aviation Law and the Regulation to the Civil Aviation Law provide for mandatory insurance requirements for air carriers.

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

The Mexican court structure is designed to follow the Federation’s principles of local judicial independence within a strong central judicial federal structure. Thus, the courts are initially organised in three general jurisdictions: municipal, local and federal.

Federal courts must abide by the general principles of the Organic Law of the Judicial Power of the Federation. Federal courts are structured as follows: (i) the Supreme Court of Justice; (ii) the federal collegiate courts; (iii) federal unitary courts; and (iv) the district courthouse.

Local state courts are organised by their own organic law, thus having complete autonomy to determine the internal structuring of the courts based on the types of claims brought before them. Thus, some states have specialised courts based on the matter or subject of the proceedings they study. These specialised courts are commonly divided throughout the federation into three broad courts: the civil, tort and commercial courts; the criminal courts; and the social law courts. Nevertheless, some states have courts specialised on commercial matters exclusively, independent to civil and tort courts.

Commercial claims in Mexico have a peculiar characteristic. Commercial matters are subject to the figure of concurrent jurisdiction, giving the the claimant the possibility to start proceedings in both federal and local courts, subject to its sole discretion. Nevertheless, concurrent jurisdictions are mutually exclusive, thus, once either jurisdiction has been chosen to start proceedings, the claim may not be brought before the other.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

Once the proceeding has begun and the lawsuit has been filed before court, the parties are obliged to exchange all the documents presented and filed to the court. Thus, a primal procedural principle is the exchange of documents between the parties for information and transparency purposes - the party that introduces any document to the court had the obligation to create a set of copies of the document, which will be given to the counterparty.

All documentary evidence must be submitted and contemplated in the initial writ of the plaintiff’s claim when starting procedures. The defendant must also, at the time of response, offer and cite the evidence to use in his or her favour. Both documentary packages will be dealt, analysed and discussed by the court at a special stage of proceeding known in Mexico as the ‘etapa probatoria’. No party subject to the trail may offer any additional evidence different to those offered in the initial writ when starting proceedings or responding to the claim. The only reason the court may accept any supervening evidence is if it is proven that the evidence was unknown or had not yet existed at the time proceedings commenced. As the evidence must be exclusively presented by the parties, when the recollection of such evidence is impossible for one of the parties, the party may request the court to issue an order to the third person that may contribute with the claimed evidence.

There are, however, special proceedings that grant certain documentary evidence with the presumption of legal certainty and validity. In these cases, such evidence is considered as proof and grounds for the valid enforcement of the remedies contemplated within.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

No documentation may be withheld from the other party. All documentation presented by the parties to the court must be informed and seen by the counterparty. Documents withheld from the court will not be considered or studied by the court at the time of ruling. Unduly spoliation of evidence results in obstruction of justice and is criminally penalised.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

Yes.

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?

Interest is awarded to the prevailing party in a lawsuit as compensation for loss of the use of money from the time it is determined at trial to be due to the time the final judgment is entered. The rate and calculation depends on the conditions set forth by the underlying agreement. It is, however, important to note that if the conditions of the interest rate are considered excessive, the principle of rebus sic stantibus for fundamental change of circumstances could be considered by the court.

Settlements

Is court approval required for settlements?

Depending of the nature of the trial, some settlements may be executed and entered upon by the parties before a public notary. However, it is strongly advised to execute settlements before the Alternative Center of Justice of the Superior Tribunal of Justice of Mexico City. In accordance with its regulations, the settlement has to be undertaken in the premises of the Alternative Center of Justice, which has the ability to aid particulars in the process. The settlement agreements and resolutions reached in it are binding.

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 its parties. Therefore, no other person or entity may be responsible for the terms therein. Therefore, stipulations and obligations not contemplated in the settlement or its parties are still pursuable.

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?

No financial sanctions exist for insurance payment of a judgment. However, there is a possibility of obtaining insurance that will cover the costs of bringing a claim. There are two ways this can occur:

  • insurance obtained individually by one of the parties as a protection for any future claims brought before court - this practice is uncommon in Mexico; and
  • insurance or indemnity may be entered upon by the parties as part of the initial transaction. In this case, they are to designate in the agreement who and when the parties may use the indemnity to cover legal costs.

While the practice of obtaining insurance to cover the costs of bringing a claim before court is a very rare in Mexico, it is common practice to establish a conventional contractual penalty in the contract, which may foresee the possibility of the condemned party having to pay the expenses and costs of the proceeding.