Dr. Juan Jose Espino, partner of our law firm, co-authored the first edition of Aviation Liability of Getting the Deal Through. This publication details the complex interplay of laws, regulations and international treaties that determine who is responsible when things go wrong in the air. Topics covered include: applicable treaties; liability for passenger injury or death during international and domestic carriage; third-party actions; liability of ground damage; liability for unruly passengers and terrorist events; consumer protection and passenger rights; government liability; criminal proceedings; effect of carrier’s conditions of carriage and tariffs; damages; accident investigation and family assistance; insurance requirements; litigation procedures; and judgments and settlements.
Chapter: Aviation Liability 2018
Applicable treaties
1. To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
The Republic of Panama is party to the Montreal Convention, effective since 2002 by Law 31 of 2002 and the Warsaw Convention, effective by Law 44 of 1996 but contemplated in the Decree Law of 1963.
In regard to other Conventions Panama has recognised specific articles related to the repression of illicit acts against aviation safety as declared in article 5 of Law 21 of 2003:
• article 3 of the Tokyo Convention;
• article 4 of the Hague Convention 1970, and article 5 of the same Convention as per 1971; and
• article 3 of the Protocol for the repression of illicit acts of violence in airports providing services to civil aviation, complementary to the Convention for the repression of illicit acts of violence against civil aviation as per the Montreal Convention of 1971.
International carriage – liability for passenger injury or death
2. Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?
In matters of personal injury or death the Panama courts have not had the opportunity to provide an established doctrine on interpretation of any of the Conventions nor on the application of Panama’s Civil.
Aviation Law.
3. 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?
Law 21 of 2003 regulates domestic aviation liability in the Republic of Panama. In its article 151 it acknowledges that for international carriage Panama recognises both conventions. Consequently, any chosen convention in a contract of international carriage will be respected by a Panama court.
4. In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
The primary definition of carrier is provided by Law No. 21 of 2003. Which in its drafting is quite influenced by the Montreal and Warsaw Conventions. And it does extend to ground handling agents and other service providers as they qualify as dependents of the principal when their services are provided within the airport confines.
For international carriers Law 21, article 151, considers that liability will be subject first to the international Conventions recognised by the Republic of Panama and Panama law will be applied in its defect. In the specific case of successive carriers, Law 21, in its article 113, considers that transportation provided by several carriers successively will be considered as one single operation.
Panama courts do not have a defined test for the successive carriage, but will consider the doctrine or interpretation provided by known academics or international case law.
5. 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?
Panama courts have not had the opportunity of reviewing the matter in order to create a precedent for interpretation of the matter.
Article 138 of Law 21 does establish that the carrier is responsible for the harm or death of a passenger, including the course of operations for embarking or disembarking, which is essentially what both Conventions contemplate.
To read the complete chapter of Aviation Liability 2018 please click here.
