Liability of Carriers I
An EU regulation provides for harmonised obligations for EU air carriers in relation to liability in the event of accidents to passengers. It applies to death, personal injury arising from incidents on board an aircraft or during embarking or disembarking operations.
The liability of the carrier or air transport undertaking for damage caused to a passenger or baggage in the event of an accident cannot be subject to a financial limit provided by law, convention or a contract. The carrier is liable unless it can prove the damage was caused by the negligence of the injured or deceased passenger. Compensation must be paid to the victim. An advance, proportional to the damage sustained, must be paid within 15 days after identification of the victim.
Passengers must be informed of a carrier’s liability in the event of an accident and of his rights, including compensation. The provisions must be included in the conditions of the carriage.
A 2002 Regulation brings EU law into compliance with the Montréal Convention. It harmonises liability limits and defences in relation to EU air carriers. The Convention provides unlimited liability for death and personal injury. The obligation to insure requires EU-based carriers to be insured to a level that is adequate to ensure all persons entitled to compensation receive the full amount to which they would be entitled under the regulation.
Carriers must provide passengers with a written indication of
- the applicable limit for the flight in question on the carrier’s liability in respect of death or personal injury (usually no limit);
- the applicable limit for the flight in question of the carrier’s liability when baggage is destroyed, lost or damaged and
- the limit for the flight in question of liability occasioned by delay.
Liability of Carrier II
The carrier’s liability in relation to passengers and their baggage relates to compensation in the event of death or injury, advance payments, liability for passenger delay and destruction and loss or damage to baggage.
Compensation for death or injury is subject to no limits. The first tier of strict liability is up to 100,000 SDR, and the air carrier may not contest claims for compensation. The second tier of liability is based on presumed fault which may be avoided only by the carrier proving that it was not at fault.
There is provision for advanced payments to cover immediate economic needs within 15 days after the identification of the person concerned. In the case of death, this must be not less than 16,000 SDR.
In the case of passenger delay, unless the air carrier took all reasonable measures, the potential liability is up to 4150 SDR in the event of delay.
In the event of damage, delay or destruction of a baggage a complaint in writing must be made.
Actions for damages must be taken within two years after the arrival of the aircraft or the date on which the aircraft should have arrived.
EU regulation requires air carriers and aircraft operators to maintain minimum insurance. This covers passengers, baggage, cargo and third parties. It applies both to domestic private flights and commercial flights.
The regulation applies to air carriers and aircraft operators flying in, out of or over the EU. It does not apply to military, customs, police and other state aircraft. It does not apply to certain other flying equipment including model aircraft, balloons, kites, parachutes, certain aircraft and microlights used for non-commercial purposes.
The risks required to be covered are specified. Particular aviation type risks such as acts of war, terrorism, hijacking, unlawful seizure which might generally be excluded from a policy are required to be covered. The rules supplement international rules subsisting under other convention.
Aircraft operators and carriers must be in a position to demonstrate compliance with the rules. They must be in a position to produce certificates of insurance to the competent authority.
The minimum liability in respect of passengers is to be 250,000 SDR per passenger. In certain circumstances a lower limit is permissible. In respect of baggage, insurance must be 1,131 SDR per passenger in commercial operations. In relation to cargo, minimum insurance is 19 SDR per kilogram in commercial operations.
The levels of cover are not applicable to flights over EU states carried out by non-EU carriers and operators using aircraft registered outside the EU.
There is minimum insurance cover for liability to third parties. This is determined by reference to the weight of the aircraft. It ranges up to 700 million SDR.
States must ensure compliance by air carriers and air operators. Where the oversights do not involve landing or take-off in the EU, states may require proof of insurance requirements. Sanctions must be effective and dissuasive and proportionate.
Delayed / Denied Boarding
A 2004 EU regulation requires common rules on compensation and assistance to passengers who are denied boarding or whose flights are cancelled or subject to significant delay. The rules apply to passengers departing from any airport within the EU or departing from a third country to an EU situate airport.
Passengers must have a confirmed reservation on the flight concerned. Except for a cancellation, they must present themselves to check-in at the time indicated, or if none is indicated, 45 minutes before the departure time.
Where an air carrier expects to deny boarding due to overbooking, it may call for persons to surrender reservations in exchange for a benefit. If they cannot obtain a sufficient number of volunteers, they may deny boarding to passengers involuntarily, but they must compensate them. Priority must be given to persons with reduced mobility and persons who accompany them.
In the event of a flight cancellation or denial of boarding, the passenger has a right to reimbursement of the cost of the ticket within seven days or through a return flight to the first point of departure or re-routing to the final destination. They have a right to care including refreshment, meals, hotel accommodation, transport between hotels, place of accommodation, two free phone calls, telex or fax messages or e-mail. They have a right to compensation totalling €250 for all flights of less than 1500 km, €400 for all inter-EU flights of more than 1500km and other flights of 1500 to 3500 km. A sum of €600 applies to other flights.
In the event of delays of two hours or more depending on the flight distance, passengers must be offered free meals and refreshments plus two free phone calls, telex, fax or e-mail access. If the time of departure is deferred till the next day they must be offered hotel accommodation and transport between the airport and place of accommodation. Where the delay is five hours or longer, they may opt for reimbursement of the ticket cost together, if relevant with a return flight to the first point of departure.
If the carrier places a passenger in a class lower than that for which he was booked, the passenger must be reimbursed with 30% of the price for flights below 1500 km, 50% between 1500 and 3500 km and 75% in all other cases.
An EU regulation provides for a code of conduct for computerised reservation systems used in air transport. It also applies to rail transport products incorporated within the air transport products in certain cases.
A system operator must not impose unfair or discriminatory conditions in contracts with participating carriers or subscribers. It must not prevent a participating carrier from using other reservation systems.
Sellers of systems must apply the same treatment to all carriers in relation to distributing their transport products. It must inform them of changes to their facilities or loading procedures. It must ensure its distribution facilities are clearly separated from the management and marketing or participating carriers.
The Commission may audit system vendors every four years or on request. While it finds there is an infringement it may require steps to terminate the infringement.