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Air accidents and statute of limitations: still an issue in Spain

In Spain, there are several legal texts that could be applicable to resolve compensation derived from an air accident. Each one of those legal texts regulates different maximum terms to exercise the civil liability action in order to claim for the compensation derived from an air accident. Spanish Courts have different criteria concerning the applicable law in each specific case and the nature of some of those terms (prescription vs expiration) and this has generated a situation of legal uncertainty: the term to exercise the action varies depending on the legal text that the Court applies in each case and it is not crystal clear if the claimant can interrupt the legal term by means of extrajudicial claims.

First of all, both the Montreal Convention (section 35) and the Regulation (EC) No. 889/2002 amending Council Regulation No. 2027/97 on air carrier liability in the event of accidents, envisage a two year-term to exercise actions claiming for compensations related to air accidents. On the other hand, section 124 of the Spanish Act on Air Navigation specifically envisages a six month-term for the execution of the referred action and, finally, section 1902 of the Spanish Civil Code envisages a one year-term for the exercise of non-contractual actions.

The recent Spanish case law shows that, surprisingly, it is still possible to find some decisions that apply the Spanish "national" rules instead of the EC Regulations to determine the applicable term to liability actions derived from air accidents. Although most of the Courts consider that the national regulation of the civil liability action on air accidents has been revoked by the supranational regulations and, consequently, they conclude that the applicable term is the one foreseen in the Regulation (EC) No 889/2002 (that is to say, Judgment of the Commercial Court No. 1 of Cadiz dated February 10 2012 or Judgment of the Commercial Court of Bilbao dated February 8 2012), we can find some divergent (but a minority) Court decisions. For example, the Judgment of the Court of Appeal of Barcelona dated July 12 2006 applied the Spanish Act on Air Navigation and its maximum term of 6 months to a damage caused in a flight boarded on May 16 2003. As a result, the Court rejected the civil liability action exercised by the claimant on August 25 2004, considering that the term for its exercise had already expired. Similarly, some Courts have considered that the plaintiff can exercise a non-contractual liability action regulated under the Civil Code, which shall be exercised in a one-year term.

Apart from the legal uncertainty caused by the existence of different legal terms to exercise the actions to claim damages related to air accidents, there are no homogeneous criteria regarding the effectiveness of an out-of-court claim so as to interrupt the term foreseen in the Montreal Convention and in the Regulation (EC) No 889/2002.

It is generally assumed that the term foreseen to exercise the actions regulated in section 1902 of the Civil Code and the one envisaged in section 124 of the Act on Air Navigation are subject to a prescription regime. Consequently, the remittal and delivery of an out-of-court claim within the maximum legal term interrupts such term, that should be recounted from zero since the day after the reception of such extrajudicial communication.

Nevertheless, there is a discrepancy amongst Scholars and Courts in relation to the prescriptive or expiration nature of the supranational maximum legal term of two-years envisaged both in the Montreal Convention and the Regulation (EC) No. 889/2002. Such dilemma also exists in other EU countries (that is to say, while the majority of the EU countries maintain that the term shall be considered as an expiration term, France considers that such a term is subject to a prescriptive regime).

In the last few years, the Spanish case law has turned its traditional criterion of pro-expiration nature into a pro-prescription nature one. The Courts which have initiated this jurisdictional stream state that the suppression of the express reference to the "expiration" in the Montreal Convention (an express mention that was clearly highlighted in its predecessor, the Warsaw Convention) is due to the will of the legislator to establish a prescription regime rather than an expiration regime.

Based on this literal interpretation of the referred legal text –that shall also be extended to the Regulation (EC) No 889/2002, as it is inspired by the Montreal Convention-, several courts (as, for example, the Commercial Court No. 7 of Madrid -Judgment dated March 2 2007-, the Commercial Court No. 6 of Madrid -Judgment dated 10 November 2009-, the Court of Appeal of Zaragoza -Judgment dated October 13 2010- and the Commercial Court of Cádiz -Judgment dated February 10 2012-) have stated that the maximum term of two years envisaged in the supranational regulations so as to exercise the civil liability action on air accidents is a prescriptive term that may be interrupted by means of an out-of-court claim sent within such maximum legal term.