Major air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
Spain is a member of the European Union and, as such, is subject to the legislation produced in the context of that organisation. For air carrier liability related to passenger injury or death, Council Regulation (EC) No. 2027/97 of 9 October 1997 on air carrier liability as amended by Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002 is applicable. These two regulations transpose the Montreal Convention into the European legal system.
In addition to the above, the Warsaw Convention (1929) has been in force in Spain since 31 January 1930, the Protocol of The Hague (1955) since 4 June 1973, the Rome Convention (1952) since 24 January 1957, the Tokyo Convention (1963) as of 25 October 1969 and the Montreal Protocols 1, 2 and 4 since 20 June 1997 (the first two) and 9 February 1999 (the last one). The contents of these protocols and conventions are directly applicable through the rules enacted for each one as described above.
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?
Spain does not have specific courts for aviation affairs, which, generally speaking, are dealt with by the commercial and civil courts, except for the cases of criminal investigations into the circumstances of accidents and incidents. The lack of a specific jurisdiction means that sometimes the courts find different solutions to situations that, prima facie, should have the same outcome.
The interpretation of the Montreal and Warsaw Convention provisions, as per the above explanation, can be dissimilar. A good example of this issue is the case of article 35 of Montreal Convention and article 29 of Warsaw Convention, which, as mentioned in question 9, are construed differently by the courts.
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, the Montreal Convention (through its EU Regulation as indicated above) and the Warsaw Convention are the sole basis for the establishment of liabilities for air carriers regarding cases of passenger injury or death. In addition, the courts apply Act 35/2015, of 22 September, as the legal regulation for the assessment of damages caused to passengers (see question 36).
Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
The term ‘carrier’ does not extend to ground handling agents or other service providers. However, this term includes both the contractual carrier and the effective carrier and, in cases of cancellation or delays, both can be deemed as jointly and severally liable.
Under Spanish case law, the existence of a sole operation, through which the passenger contracts a transport or various transports with one or more than one airline is a presumption of a successive carriage according to article 1(3) of the Montreal Convention and Warsaw Convention. The existence of more than one contract does not exclude the interpretation of such transport as a successive carriage. This interpretation matches with the contents of article 45 of the Montreal Convention and enables the passenger to claim compensation against either the effective carrier or the contractual carrier, and even against both which, as stated above, could give rise to a joint and several liability.
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?
‘Accident’ is interpreted by the Spanish courts as an occurrence in connection with the operation of the aircraft or the conditions of the aircraft. Therefore, not all deaths or bodily injuries occurred in the course of a flight give rise to air carrier liability. For instance, Spanish courts have stated that Sudden Infant Death Syndrome is not an accident under article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention; consequently, in these cases, the air carrier is not liable for the death of the infant.
‘Bodily injury’ includes not only physical injuries but also moral damages suffered by the passenger.
The interpretation of ‘in the course of any of the operations of embarking or disembarking’ in Spanish case law and doctrine is not uniform. It seems, however, that an airline would be liable for the period of time the passenger is under its responsibility, although sometimes this is not easy to determine.
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?
There are no judgments dealing specifically with the articles 20 and 21 of the Montreal Convention passed down in Spain at present. Presumably, any argument of defence raised by the air carrier would be interpreted by the Spanish courts in a restrictive manner, as they tend to be very protective of the consumers or passengers’ interests and rights.
As regards the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention, it is treated as an objective standard (ie, the standard of the Spanish Civil Law). Relevantly, the Spanish wording of article 25 of the Warsaw Convention is equivalent to the regulation of the wilful misconduct in the Spanish Civil Code and in another Spanish Civil regulation.
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?
The advance payment obligation set out in the Montreal Convention is applicable in the Spanish jurisdiction.
It should be noted that in the last major losses that occurred in Spain or affected the Spanish market, the airlines and their insurers decided (voluntarily) to make advance payments above the minimum required by the Montreal Convention - article 5 of the Council Regulation (EC) No. 2027/97 of 9 October 1997 (ie, more than the 16,000 special drawing rights (SDR)). Consequently, if that circumstance is to be faced, it would seem advisable to keep these precedents in mind.
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?
With regard to jurisdictions as to the domicile of the carrier, principal place of business of the carrier and the place of destination, disputes between the parties under Spanish case law are hard to find, as those are clear legal concepts (domicile of the carrier) or clear factual issues (the principal place of business of the carrier and place of destination).
Having said that, in respect of the jurisdiction of the place of business of the carrier through which the contract has been made, in the case of the death of a passenger, Spanish courts tend to place the burden of proof of the purchase of the ticket on the air carrier. The reason for this is that the airline is deemed to have better access to the means of proof than the relatives of the passenger. As a result, if the airline does not provide the court with supporting evidence proving where the ticket was acquired, then the Spanish court will most likely accept its jurisdiction.
Fifth jurisdiction (main residence of the passenger) is also easy to prove before the Spanish courts and it does not usually involve big disputes. A property owned or rented by the passenger, and particularly the register of the passenger at the census of the city council are assessed by the courts as clear proof of residence.
Forum non conveniens doctrine is not applied by the Spanish courts. Therefore, it is not applicable in connection with actions brought on the basis of the Montreal or Warsaw Convention.
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?
While the interpretation given to article 29 of the Warsaw Convention is clear (as absolute), Spanish case law is not harmonised on whether the article 35 of Montreal Convention should also be construed in the same manner.
The current thinking supporting the absolute interpretation of article 35 of Montreal Convention understands that its spirit is to continue with the previous status quo (ie, article 29 of the Warsaw Convention), even though the wording was modified. Another argument used is the fact that the Warsaw Convention is still in force, and the interpretation on the contents of the Vienna Convention on the law of treaties of 23 May 1969.
On the other hand, the supporters of the tolling interpretation allege the modification of the contents of the article and the nature of other periods in other similar regulations.
It would seem, however, that the trend of case law is more supportive of the absolute interpretation, although the solution for the moment will not be clear beforehand.
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?
In code-sharing situations, courts tend to admit the existence of liability of both the contractual and actual carrier in accordance with article 45 of the Montreal Convention. Relevantly, in cases where the plaintiff sues only one of the carriers, the courts (normally) allow the defendant to call the other carrier to the proceedings (in accordance with the article 14 of the Spanish Civil Procedural Act). With regard to the Warsaw Convention, the rulings of the courts are less clear since the Convention does not expressly establish which party should be liable in cases where contracting and actual carriers coexist.
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 indicated in article 1 of Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002, liability for injury or death that occurred on a domestic flight is governed by this regulation.
Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
Article 21 of the Montreal Convention is, in principle, construed by the Spanish case law as a double-tier system as follows:
- For damages up to 113,100 SDR per passenger, the liability of the carrier will neither be exempted or limited, unless the carrier proves that the damage was caused in whole or in part by the negligence or undue act or omission of the person claiming compensation.
- For damages above 113,100 SDR per passenger, the carrier will not be deemed responsible if it proves: (i) that the damage was not caused by negligence or any undue act or omission on the part of the carrier, its employees or agents; or (ii) that the damage was solely caused due to the negligence or any other undue act or omission of a third party. In addition, the carrier can exempt from or limit its liability if it proves that the damage was caused in whole or in part by the negligence or any other undue act or omission of the person claiming for compensation.
In summary, the first tier provides a quasi-strict liability regime, where the carrier could limit and exempt from liability just if it proves that the damage was caused by the person claiming compensation and, on the second level, the system provides a fault-based liability regime where the carrier can exempt from liability if it proves its lack of negligence or the existence of negligence or act or omission by a third party.
Is there any limit of a carrier’s liability for personal injury or death?
The Spanish legal system provides for a full restoration obligation to the party liable for the damage caused to a third party. On the basis of this system, the only limit for an air carrier’s liability for personal injury or death cases is the damage actually caused to the passenger or the prejudiced party. For further information about the calculation of the damage caused, see questions 36 and 37.
What are the main defences available to the air carrier?
Briefly, the main defences available to the air carriers are:
- observance of the lex artis on the side of the air carrier and its employees;
- third party’s liability; or
- acts of God or force majeure.
Is the air carrier’s liability for damages joint and several?
In Spain, 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?
As stated above, article 20 of the Montreal Convention is considered a regime that provides a two-tier system where, if the passenger caused the damage in whole or in part, the carrier can be exempted from the relevant part of liability caused by the passenger. It should be noted however, that the burden of proof of said circumstance will always be on the side of the air carrier.
In cases of minors or persons with reduced mental capacity, the Spanish Civil Code provides the general principles and rules for the guard and custody, determining that if they caused their own damage, the portion of their liability will lie with their parents or guardian.
Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
As stated in question 9, the time limitation period of two years provided by the Warsaw Convention and the Montreal Convention for injury or death is applied in Spain.
The period commences as soon as the passenger or injured party can bring the claim. In cases of death, this will typically be the date of the passing and, in cases of injuries, the date when the healing period finalised and, therefore, the scope of the injury was clear.
It seems advisable, to be on the safe side, to consider the action of the Montreal Convention as governed by an absolute period. Filing the action will be deemed a timely commencement of its execution.
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
Recovery actions in Spain are typically instigated before the Civil Courts against the party ultimately responsible for the loss. A description of a typical civil procedure is provided in the question number 42.
What time limits apply?
The general limitation period for a recovery action is one year if there is no contract in place, and five years if there is a contractual relationship between the parties. The period will commence upon the payment of the indemnity to the damaged party.
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?
The liability of any damages caused by an air carrier to persons or goods on the ground are, in principle, governed by the non-contractual liability provisions set out in article 1902 of the Spanish Civil Code.
Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
The criterion provided by the third-party liability system of the Spanish Civil Code is based on the existence of three different elements, namely:
- a damage sustained by the third party;
- a faulty act or omission by the - allegedly - liable party; and
- the existence of a causal link between the act or omission and the damage.
Is there any limit of carriers’ liability for ground damage?
The Spanish legal system provides for a full restoration obligation to the party liable for the damage caused to a third party. On the basis of this system, the only limit for air carrier’s liability for personal injury or death cases on ground damage is, as for the cases of injury or death to passengers, the damage actually caused to the passenger or prejudiced party. Material damage must be proved by the claimant. For further information about the calculation of damage, see questions 36 and 37.
What are the main defences available to the air carrier in a claim for damage caused on the ground?
The main defences available to the air carriers are:
- observance of the lex artis on the side of the air carrier’s employees;
- the third party’s liability; and
- acts of God or force majeure.
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 regulations applicable for unruly passenger and terrorist events in Spain include the following:
- Convention on Offences and Certain Other Acts Committed on Board Aircraft, commonly called Tokyo Convention of 1963, ratified by Spain on 2 October 1969;
- Convention for the Suppression of Unlawful Seizure of Aircraft, commonly known as The Hague Hijacking Convention of 1971, ratified by Spain on 14 October 1971;
- Convention for the suppression of unlawful acts against the safety of civil aviation (with Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviation Organization at Montreal in September 1971). Concluded at Montreal on 23 September 1971;
- Act 48/1960 of 21 July, on Air Navigation;
- Act 10/1995 of 23 November approving the Spanish Criminal Code.
- Act 209/1964 of 24 December, for criminal offences and of Criminal Procedure for the Air Navigation; and
- Act 29/2011, of 22 September, for the Recognition and Integral Protection of the Victims of Terrorism.
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 addition to the Tokyo Convention (1963) provisions that are applicable in Spain, article 122 of the Act 48/1960 of 21 July on Air Navigation provides that the air carrier will be liable for the damages caused by a person in command of the aircraft without the permission of the carrier or the owner, unless it is impossible to prove the unlawful use of the aircraft.
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
As stated previously, the Spanish legal system provides for a full restoration obligation to the party liable for the damage caused to a third party. On the basis of this system, the only limit for an air carrier’s liability for cases of injury or death caused by an unruly passenger or a terrorist event, is the damage actually caused to the passenger or the prejudiced party (see questions 36 and 37 for the evaluation of the damage).
Act 29/2011 of 22 September, on the Recognition and Integral Protection of the Victims of Terrorism provides for an automatic indemnity payable by the government to victims of terrorist acts.
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?
The main defences available in this situation are the observance of the lex artis through the compliance with the safety regulations and the third-party liability.
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.
As members of the European Union, Spain is subject to the EU regulations governing these areas, summarily:
- Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 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 (Text with EEA relevance) - Commission Statement;
- Regulation (EC) No. 1107/2006 - rights of disabled persons and persons with reduced mobility when travelling by air; and
- Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002.
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 main laws applicable to the government entities in this area are the following:
- Act 48/1960 of 21 July, on Air Navigation;
- Act 21/2003 of 7 July, on Air Safety;
- Royal Decree 8/2014 of 4 July on approval of urgent measures for the growth, competitiveness and efficiency; and
- the Spanish Civil Code.
Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
The government’s liability is known in Spain as Patrimonial Liability of the Public Administration. The government and, in general, all public entities are liable for the damage caused to individuals as a result of the normal or abnormal functioning of the public services. The government will not be obliged to compensate in case of force majeure or when the individual is legally obliged to bear the damage. The damage must be quantifiable and the limitation period to bring an action against the public administration is one year. Therefore, this is a strict liability for as long as the aforesaid conditions are present and the existence of fault or negligence on the part of the public entity is not a requisite.
Are there any limitations to seeking recovery from the government entity?
In principle, there are no restrictions to seek recovery from the government entities and they should ensure that the prejudiced party is fully restored for the damage sustained.
Responsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Since a modification of the Criminal Code in 2010, companies can be held criminally responsible for certain types of acts and under certain circumstances. Therefore, depending on the background of the case, an air carrier could be held criminally responsible for an aviation accident.
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 existence of a criminal proceeding investigating an event where the air carrier is a party that could be held liable could, in principle, stop other civil proceedings brought by the passengers or their representatives (including their families) seeking compensations from said air carrier. The purpose of this legal provision is to prevent the influence that civil judgments could potentially have on the outcome of the criminal proceedings.
Having said the above, there are a number of aspects that can influence the civil courts’ decision, such as whether the plaintiffs are also a party to the criminal proceeding, if they are claiming for their civil rights in the criminal court (this is possible under the Spanish Criminal Procedural Act) or whether or not the amount at stake exceeds the strict-liability limitation compensation provided by the Montreal Convention. Consequently, the effect of a criminal proceeding against an air carrier should be analysed on a case-by-case basis.
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
Article 112 of the Spanish Criminal Proceedings Act allows the parties to bring their civil claims before the criminal court that is investigating the circumstances of an aviation accident.
A typical example would be the investigation carried out by a criminal court to determine the existence of criminal liabilities that, if existing, could also determine the indemnities owed to the prejudiced parties. The parties can, however, decide to reserve their civil action for a later and subsequent civil proceeding before the civil jurisdiction.
In addition, if the criminal court determines that there is no criminal liability, the prejudiced parties are allowed to bring proceedings in civil courts seeking compensation for sustained damage - the basis for the determination of criminal and civil liabilities differs.
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 conditions of carriage and tariffs are binding for parties unless they are considered abusive.
What damages are recoverable for the personal injury of a passenger?
Spain does not have any regulation governing what compensation can be claimed following an aviation event that causes damage or death to passengers.
However, there is a rule enacted for the assessment of damages arisen out of road traffic accidents called the Baremo (Act 35/2015 of 22 September), which is commonly applied by the courts to assess personal injuries and death, irrespective of the background of the case. This rule has been applied, sometimes with a slight increase, in aviation accidents.
The Baremo aims to be a full reparation system. It provides different heads of damages to indemnify the damage caused to the parties; namely, basic, specific and material damage.
In the case of injuries, the basic is the indemnity for sequelae covering psychological and physical harm and also aesthetic consequences, which are calculated separately. Sequelae are defined as permanent injuries that remain after the conclusion of the healing period. The degree of disability is calculated in points, where 100 represent the highest possible score. Also, in cases of temporary injuries, basic personal damage will include a daily rate compensation from the date of the accident until the date when the healing process concluded.
The specific damage comprises additional damages related to a number of particular circumstances that increase the basic damage, such as moral damage for specific cases, organ and sensory damage, aesthetic impairment, among others.
Finally, material damage includes, inter alia, indemnity for future healthcare, payment for prostheses and orthoses, care at home or outpatient care.
Punitive damages are not allowed in Spain.
What damages are recoverable for the death of a passenger?
As in the cases of personal injury, the Baremo is also applied analogically for cases of dead passengers. The triple system (basic, specific and material damage) is also applicable to these cases, although with some particularities explained below.
In cases of death, the Baremo provides a set of rules to determine who the prejudiced parties for a specific loss are; this depends on different factors, such as the cohabitation or the coexistence with other prejudiced parties, for example, if there are no parents or grandparents, then the aunts and uncles may have right to claim, whereas if the first exist, the latter will not have a claim. The existence of next of kin does not necessarily allow claiming as prejudiced party.
Basic damage in cases of death corresponds, essentially, to the pain and suffering for the loss (this includes the moral damage).
The specific damage comprises a number of particular circumstances that increase the basic damage, such as being an only child, pregnant, the passing away of both parents in the accident, and suchlike.
Finally, material damage includes compensation for expenditure (up to €400 without the need for justification), costs of transportation, repatriation and funerals, and loss of earnings or loss of income by the prejudiced party - which can substantially increase the basic and specific damage.
Punitive damages are not allowed in Spain.
Accident investigation and family assistance
Who is responsible in your state for investigating aviation accidents?
There are two independent bodies that carry out the investigations of aviation accidents in Spain:
- The Commission for the Technical Investigation of Civil Aviation Incidents (CIAIAC), for civil accidents, whose investigation is governed by the Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation (in line with the Annex 13 ICAO contents).
- The Commission for the Technical Investigation of Military Aircraft Accidents (CITAAM), for military accidents, whose investigation is governed by Royal Decree 1099/1994, of 27 May.
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
In Spain, whenever an aviation accident occurs and causes damage, a double investigation is opened: on the one side, by CITAAM or CIAIAC, whose purpose is not to establish liabilities but to prevent further occurrence of the same type of accident and, on the other side, by the criminal court, whose aim is to determine if there is any criminal liability related to the causes of the accident or otherwise.
Both investigations run in parallel and, unfortunately, it is quite common that the courts use the reports produced by CITAAM and CIAIAC to make decisions about the existence or not of criminal liabilities. On 2 February 2015, the government and the CIAIAC formalised a protocol to set the rules for the coordination of both investigations and for the limitation of the use of the CIAIAC reports in the criminal proceedings.
Article 14 of the Regulation (EU) No. 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and determines the confidentiality of the DFDR and CVR. Following this mandate, the CITAAM and CIAIAC and courts try to keep the contents of the CVR and DFDR confidential. However, leakage to the media by other parties in the criminal proceedings - who have access to them - happens often.
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?
The following regulations address the assistance to passengers and their families in the aftermath of an aviation accident:
- Regulation (EU) No. 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation;
- Royal Decree 632/2013, of 2 August, regarding the assistance to victims of accidents of civil aviation and their families; and
- Resolution of 14 May 2014 of the sub-secretary, approving the Protocol for the Coordination for the assistance to victims of civil aviation accidents and their families.
Are there mandatory insurance requirements for air carriers?
The insurance requirements for air carriers in Spain are governed in the Regulation (EC) No. 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators. The requirements are set out in articles 6 and 7 of this Regulation and summarised below.
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
The Spanish Civil Act governs the civil proceedings and provides for a two instance system - sometimes three instances, when there is a case that can be heard also by the Supreme Court. Depending on certain characteristics of the dispute - such as the amount at stake, €6,000 being the barrier - the proceedings can vary between:
- a shorter and more straightforward proceeding (summary proceeding), where there is just a writ of action, a writ of defence and a quick hearing - just if the parties request it; and
- a more complex proceeding (ordinary proceeding), where in addition to the parties’ writs (action and defence), there is a preliminary hearing where some procedural issues are discussed and the evidence to be produced during the trial phase is proposed and accepted or rejected by the judge, and a trial hearing. In the trial hearing, the parties cross-examine the witnesses and experts, review the documentation submitted to the court and make their oral pleadings.
Both the summary and ordinary proceedings finalise with a ruling issued by the judge in a period of 10 and 20 days, respectively.
Only the ruling of the ordinary proceeding can be appealed in the upper courts. The period to bring the appeal is 20 days since its notification to the party; the rest of the parties to the proceedings can oppose to the writ of appeal in a 10-day period. Generally speaking, in the second instance, there is no hearing and the Appeal Court, which is formed by three magistrates, issues its ruling.
What is the nature and extent of allowable discovery/disclosure?
There is no allowable discovery or disclosure in Spain. Having said that, there is a very specific procedure that can be used for the disclosure of certain documents called preliminary enquiry, but it requires that the petitioner knows about the existence of said documents. In other words, there is no possibility of requesting the disclosure or discovery of a complete file but rather just the disclosure of certain types of documents, the existence of which is already known to the petitioner. The insurance policy is typically one of the documents requested through the preliminary enquiry procedure.
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
First, article 12.3 of Regulation (EU) No. 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation mandates and regulates the preservation and access to evidence related to aviation losses (particularly the wreckage).
Second, the Spanish Criminal Procedural Act also provides certain rules to ensure the protection and preservation of evidence until the moment of the trial hearing.
Finally, in the above-mentioned protocol signed on 2 February 2015 between the government and the CIAIAC, the parties agreed certain rules to ensure the preservation of the evidence throughout the judicial and administrative investigations.
Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
In criminal cases, there is no possibility to claim for the attorneys’ fees or litigation costs. However, in civil cases, the judge can impose these costs to the losing party (if the judge accedes to every single request of the plaintiff), who will be bound to pay them with the amount awarded.
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?
The courts can impose interest on the losing party. The interest is applied from the date of the submission of the action in the courts and until the date of the final judgment. This interest is typically in the region of 5 per cent, although it varies and, consequently, it needs to be calculated on a case-by-case basis.
Insurance companies can face higher interest rates, particularly after two years from the occurrence of the loss, where the rate can be as high as plus 20 per cent (yearly).
Is court approval required for settlements?
Court approval is not required for settlements reached in the context of litigated matters. However, the parties are allowed to formalise their agreement before the court, which is typically done to ensure a quicker and safer closure of the case.
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?
Subrogation is permitted under Spanish law. Consequently, the payer of an indemnity can, in principle and provided that the amount compensated is adequate, bring an action against the party who is ultimately responsible for the damage caused. In any case, prior to any payment, it is advisable to make the party ultimately liable aware of the existence of the claim.
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, there are financial sanctions to be taken into account in the Spanish jurisdiction, including those imposed by the United Nations, the EU and the US Office of Foreign Assets Control. Consequently, before an air carrier or its insurer may pay a judgment or settlement, the financial sanctions regime should be checked.