The Aviation Law Review: Argentina
The National Civil Aviation Administration (ANAC), created by Executive Decree No. 239/2007, is the government entity in charge of civil aviation matters, which monitors compliance with the Argentine Aeronautical Code (Law No. 17,285), the Air Policy (Law No. 19,030), international treaties and agreements, and all applicable regulations concerning civil air transportation.
Executive Decree No. 1840/2011 provides that the Argentine Air Force under the Ministry of Defence should be in charge of air traffic control, which will be overseen by ANAC.
Slots are granted by ANAC taking into account international agreements in relation to air traffic rights and the previous approval by the Argentine Air Force and airport authorities as set forth by Executive Decree No. 1770/2007 and Resolution ANAC No. 764/2010.
Code-sharing operations should be authorised by ANAC, which verifies compliance with Section 110 of the Aeronautical Code, which provides that agreements that imply business or service pooling, connecting, consolidating or merging arrangements shall be subject to prior approval by the aviation authority. Article 2 of Executive Decree No. 1401/98 establishes that for code-sharing or joint operation proposals to be approved, air operators should be holders of approvals or licences that allow them to operate the air service that is the subject matter of the code-sharing agreement.
As to domestic air fares applicable to scheduled air services, the Secretariat of Transport indicates periodically the maximum amounts of economy class fares that air carriers can apply.
Air policy is established by Law No. 19,030, as amended by Law No. 19,534. Foreign air carriers may operate international air services pursuant to the terms provided by the treaties and bilateral air services agreements entered into by Argentina.
Chapter 7, Article 138 of the Aeronautical Code provides that routes that represent a general interest for the country may receive subsidies. There are also benefits for domestic air carriers in relation to fuel prices. Aerolineas Argentinas, a state-owned company, receives funds from the national budget, and the current administration is highly protective of its operation.
Legal framework for liability
i International carriage
Argentina has ratified, among others, the following international multilateral conventions:
- Decree-Law No. 15,110/46 ratified the Convention on International Civil Aviation (Chicago Convention 1944). Said Decree-Law was ratified by Law No. 13,891. Law No. 25,622 approved the Protocol on the Authentic Six Language Text of the Convention on International Civil Aviation, signed in Montreal on 1 October 1998.
- Law No. 14,111 ratified the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed on 12 October 1929 (Warsaw Convention).
- Law No. 17,386 ratified the Protocol modifying the Warsaw Convention, signed at The Hague on 28 September 1955.
- Law No. 23,556 ratified the Montreal Protocol, signed in Montreal on 25 September 1975.
- Law No. 17,404 ratified the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed in Rome on 7 October 1952.
- Law No. 20,411 ratified the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, signed in Montreal on 23 September 1971.
- Law No. 23,111 ratified the Convention for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft, signed in Rome on 29 May 1933.
- Law No. 23,915 ratified the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Civil Aviation signed in Montreal on 23 September 1971.
- Law No. 25,806 ratified the sub-regional agreement with Bolivia, Brazil, Chile, Paraguay, Peru and Uruguay signed in Fortaleza on 17 December 1996.
- Law No. 26,451 ratified the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention 1999). The instrument of accession by Argentina contains the following interpretative declaration: 'For the Argentine Republic, the term “bodily injury” in Article 17 of this treaty includes mental injury related to bodily injury, or any other mental injury which affects the passenger's health in such a serious and harmful way that his or her ability to perform everyday tasks is significantly impaired.'
- Decree-Law No. 12,359/57, which was ratified by Law No. 14,467, ratified the Convention on the International Recognition of Rights in Aircraft signed in Geneva on 19 June 1948.
- Law No. 18,730 ratified the Convention on Offences and Certain Other Acts Committed On Board Aircraft signed in Tokyo on 14 September 1963.
- Law No. 19,793 ratified the Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on 16 December 1970.
- Law No. 27,357, published in the Official Gazette on 2 June 2017, whereby Argentina ratified the Convention on Mobile Equipment and its Protocol on Matters Specific to Aircraft Equipment, signed in Cape Town, Republic of South Africa, on 16 November 2001.
ii Internal and other non-convention carriage
The Aeronautical Code was approved by Law No. 17,285. It has been amended by Law No. 22,390 and Executive Order No. 326/82. Resolution No. 1532/98 issued by the Ministry of Economy, Works, and Public Services establishes regulations applicable to the general conditions for the contract of carriage.
Article 92 of the Aeronautical Code provides that air transportation service is any act aimed at transporting people or things in an aircraft from one airport to another, and that aerial work comprises all commercial air commercial operations excluding transportation.
Article 131 of the Aeronautical Code provides that to perform aerial work in any of the specialities, operators should obtain prior authorisation from ANAC, which will verify their technical and financial capacity.
iii General aviation regulation
Article 36 of the Aeronautical Code sets forth that any equipment or mechanisms that may fly in the airspace and that would be suitable to transport people or things will be considered as aircraft.
This definition includes helicopters and microlights. As such, they have to comply with regulations that provide that aircraft should have registration and airworthiness certificates pursuant to Article 10 of the Aeronautical Code.
The provisions included in the Aeronautical Code and international treaties ratified by Argentina are applicable to any aircraft. Pursuant to Article 139 of the Aeronautical Code, the carrier shall be liable for damage caused by death or bodily injury suffered by any passenger when the accident that caused the damage has occurred on board the aircraft or during takeoff or landing operations.
The carrier should also have mandatory insurance in relation to employees and in relation to the damage they may cause to transported passengers, cargo and third parties on the surface.
iv Passenger rights
Resolution No. 1532/98 issued by the Ministry of Economy and Public Works and Services sets forth the general conditions of the contract for carriage by air, which regulate the rights and obligations of parties including passenger protection rules in cases of delays, cancellation and denied boarding.
On 12 April 2013, Resolution No. 203/2013 issued by ANAC was published in the Official Gazette, whereby Article 12 of Resolution No. 1532/98 was amended to state that air carriers will be excluded from the provision of the following services free of charge at an airport where adverse climate conditions cause delays or cancellations, or delays in the delivery of luggage; a stop could not be made as scheduled or at the destination; or in the case of loss of a connecting flight with a confirmed reservation:
- phone communication to the point of destination and local calls;
- food and beverages according to the waiting time until boarding of the next flight;
- hotel accommodation, either at the airport or in the city, after a four-hour delay; and
- shuttle services to and from the airport.
Notwithstanding the above, the air carrier should take all the possible measures it can to provide passengers with adequate and truthful information about the delays caused by said circumstances until it can either provide or resume its transportation services or passengers can be rerouted through the services of another air carrier or an alternative means of transportation.
Consumer Protection Law No. 24,240 as amended by Law No. 26,361 provides that regulations of the Aeronautical Code and international treaties will be applicable as priority pieces of legislation.
In relation to discrimination, Argentina is a party to applicable international treaties, which include the following:
- the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons With Disabilities, signed in Guatemala, and ratified by Law No. 25,280;
- the UN Convention on the Rights of Persons with Disabilities, ratified by Law No. 26,378;
- the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Law No. 17,722;
- the Convention on the Elimination of all Forms of Discrimination against Women, ratified by Law No. 23,179; and
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Law No. 23,338.
Law No. 22,431 created a comprehensive protection system for persons with disabilities, which provides the requirement to avoid the creation of physical barriers in buildings, and for transportation to allow access to persons with reduced mobility. Decree No. 914/97 related to Law No. 22,431 provides that in relation to air transportation the following benefits should be provided to passengers with reduced mobility and communication:
- safe and comfortable entrance and exit of the aircraft by means of mechanical or alternative systems that exclude physical effort should be allowed;
- a special wheelchair to be used in the aisles of the aircraft to allow a non-walking person to reach his or her seat;
- seats located in the aisles with foldable armrests for persons with reduced mobility; and
- general and emergency information, provided orally to all passengers and in a written form, in printed maps and in Braille so that blind persons can locate emergency exits.
In addition, the above-mentioned Resolution No. 1532/98 issued by the Ministry of Economy and Public Works and Services sets forth the General Conditions of the Contract for Carriage by Air, which states that in domestic flights disabled passengers will be authorised to travel with their guide dogs in the aircraft cabin free of charge (Article 9).
Law No. 23,592 prohibits and penalises discriminatory actions or omissions that may restrict the full exercise of constitutional rights based on race, religion, nationality, ideology, political or union opinion, sex, economic position, social condition or physical characteristics.
v Other legislation
The Argentine Criminal Code provides that any person who performs any action that endangers the safety of an aircraft shall be punished with two to eight years' imprisonment. If the act results in an air disaster, the punishment shall be six to 15 years' imprisonment.
If the act causes injury to a person, the punishment shall be six to 15 years' imprisonment and, if it causes a person's death, it will be 10 to 25 years' imprisonment.2
Those who without creating a common dangerous situation prevent, obstruct or hinder the normal operation of the air transport shall be punished with three months to two years' imprisonment.3
Pilots, mechanics and other employees who abandon their position during their corresponding services before arriving at their destination shall be punished with one month to one year's imprisonment if the act does not imply a more severely punished crime.4
Those who, because of imprudence or negligence, lack of skill in their art or profession or non-compliance with the regulations or ordinances, cause a derailment, shipwreck or any other accident provided for in this chapter shall be punished with six months to three years' imprisonment. If a person is injured or dies as a result of the crime, one to five years' imprisonment shall be imposed.5
Article 198 provides that the following shall be punished with three to 15 years' imprisonment:
2º. those practising any act of pillage or violence against an aircraft in flight or while it is performing the operations immediately before the flight, or against persons or things therein, without being authorised by any belligerent power or exceeding the limits of a legitimately granted authorisation;
3º. those who, by means of violence, intimidation or deception, misappropriate a vessel or an aircraft to take possession thereof or to dispose of the things or persons therein;
4º. those who, in collusion with pirates, deliver a vessel or an aircraft, their cargo or what belongs to their passengers or crew to them;
5º. those who, with threats or violence, oppose the commander or the crew's defence of the vessel or aircraft being attacked by pirates;
6º. those who, on their behalf or on behalf of others, equip a vessel or an aircraft intended for piracy;
7º. those who, from the Argentine territory, knowingly traffic with pirates or provide them with aid.
Article 199 sets forth that if the acts of violence or hostility mentioned in the preceding article are followed by the death of a person having been attacked in the aircraft, the punishment shall be 10 to 25 years' imprisonment.
Licensing of operations
i Licensed activities
Individuals or corporations domiciled in Argentina may be granted authorisation to provide domestic air services. Foreign air carriers shall not be authorised to provide passenger, cargo or mail transportation within the Argentine territory. Article 97 of the Aeronautical Code provides that the executive power, for general interest reasons, may authorise foreign companies to perform domestic air services, subject to reciprocity. Since 2016, the new government administration changed previous policies granting authorisation to new air carriers to enter the market. After several years, a public hearing was held on 27 December 2016, where several air carriers stated their interest to provide their services.
Article 105 of the Aeronautical Code provides that no concession or authorisation shall be granted without prior verification of the operator's technical and economic–financial capacity, as well as its ability to use the airport, auxiliary services and flight material in a proper manner. The procedure to obtain a licence to operate air services is ruled by Law No. 19,030 as amended by Law No. 19,534, and by Executive Order No. 1492/1992, as amended by Executive Order No. 2186/1992.
ii Ownership rules
Sections 98 and 99 of the Aeronautical Code set forth that domestic air transportation may only be provided by Argentine individuals or legal entities domiciled in Argentina. Corporate officers that exercise the control and management of the company should have their domicile in Argentina. The president of the board of directors, the managers and at least two-thirds of the directors and administrators must be Argentinian.
The majority of the voting shares of corporations that provide domestic air services should be nominative and held by Argentine shareholders domiciled in the country. Pursuant to Section 2 of Executive Decree No. 52/94, said provision is also applicable to Argentine legal entities that provide international air services following Article 128 of the Aeronautical Code.
iii Foreign carriers
To operate scheduled services to and from Argentina, bilateral and multilateral air services agreements would be analysed by ANAC in terms of air traffic rights, capacity, frequencies, cargo capacity, etc.
Foreign-registered operators will have to register a branch office in Argentina before the tax authorities and the Superintendency of Corporations. They will have to submit, among other documentation, a diplomatic designation, the air operator's certificate, registration and airworthiness certificates of the aircraft and an insurance certificate.
Argentina has signed several bilateral agreements and memoranda of consultation on air transport services with different countries.
Safety regulations are issued by ANAC, which verifies compliance with, among other regulations, requirements set forth by the Civil Aviation Aeronautical Regulations, the Argentine Airworthiness Regulations, the International Civil Aviation Organization (ICAO) recommended standards and the Aeronautical Information Service.
The Aeronautical Code provides that air activities in certain areas of the Argentine territory may be prohibited or restricted for reasons of national security, public interest or flight safety.6 Carriage of things posing a risk for flight safety shall be ruled by the aviation authorities. In no case shall carriage of hazardous materials in aircraft carrying passengers be authorised, except for radioactive material, which may be transported pursuant to the regulations issued by the competent authority and subject to inspection.7 Executive Decree No. 2416/85 sets forth that domestic carriage of dangerous goods will be ruled by the provisions of Annex 18 of the Chicago Convention 1944, as well as its technical documentation.
No aircraft shall fly without having the licence, airworthiness certificates and logbooks required by the regulations. Aircraft that are built, repaired or undergo modifications shall not perform any flights without having been previously inspected and the repair works having been approved by the aviation authority or by technicians expressly authorised thereby. The same procedure shall be followed when the aircraft airworthiness certificate has expired.8 Aircraft should be equipped with radio devices for communication and they must have a licence issued by the competent authority. The aviation authority shall determine the aircraft that may be exempted from having said equipment.9 ANAC will carry out verifications concerning persons, aircraft, crew and carried goods before departure, during the flight or at landing or at its apron, and take the proper measures for flight safety.10 A mechanic authorised by the Argentine aviation authorities must verify the safety conditions of the aircraft before takeoff.
Accident investigations are regulated by Annex 13 of the Chicago Convention, Title IX11 of the Aeronautical Code and Decree No. 934/1970.
This year the National Safety Board commenced its functions, namely being responsible for the investigation of aviation, maritime, railroad and road accidents. It was created by Law 27,514. The National Safety Board replaced the Board of Investigations of Civil Aviation Accidents (JIAAC). This agency is in charge of the technical investigation of accidents and incidents to determine their causes and recommend efficient actions aimed at avoiding the occurrence of accidents and incidents in the future.
The JIAAC issued Resolution No. 55/2017 whereby it established that physical persons and legal entities, national or foreign, private or public, and the agencies to whom the Board's recommendations were addressed should inform the Board of their actions aiming to comply with said recommendations within a term of 60 business days as from notice of the Board's approval of the final report. On 22 January 2017, Resolution No. 251-E/2017 was published in the Official Gazette, issued by the JIAAC, which established the confidentiality of accident and incident investigation records pursuant to the new parameters set forth by Amendment 15 regarding Paragraph 5.12 of Annex 13 issued by ICAO in July 2016.
On 26 March 2018, the Federal Civil and Commercial Court of Appeals, Chamber I, confirmed the first instance court's decision that had rejected the complaint filed by a passenger's widow, whose husband died as a consequence of the crash of LAPA flight 3142 dated 31 August 1999. The claimant sought damages from the national administration (the Argentine Air Force – Ministry of Defence) arguing that it should be held liable on the grounds that the Argentine Air Force authorities should have exercised their control over persons and goods destined to provide air transportation as a public service. The plaintiff argued that the pilot and the co-pilot should not have been granted the authority to perform their jobs. The first instance court based its decision to reject the complaint on the criminal court's decision related to the accident where reference has been made to the investigation carried out by the Civil Aviation Board of Accidents Investigation (JIAAC), which had ascertained that the crew failed to carry out appropriate measures to ensure safety. The criminal court had held that it had not been ascertained that the alleged lack of compliance of public officers' duties had any relation to the accident and that their appointment as pilot and co-pilot, respectively, had been the exclusive decision of the involved air carrier. The court of appeals held that the public officers had complied with their duties and they could not be considered liable either in relation to the air carrier's decision to appoint them as pilot and co-pilot or in relation to their safety mistakes.12
Title X of the Aeronautical Code (Sections 191 to 196) provides that the aircraft operator should have the following insurance:
- labour insurance;
- liability insurance in relation to passengers, baggage and shipped goods;
- insurance in relation to liability for surface damage; and
- as set forth by Section 193, it is mandatory for the authorisation of the operation of foreign aircraft to have an insurance policy that covers damage that could be caused by the aircraft to carried persons and goods as well as third parties on the surface as stated in the Aeronautical Code and international conventions.
In docket No. 11575/2002, dated 8 February 2013, the Federal Civil and Commercial Court of Appeals, Chamber II, ruled in favour of the Argentine Association of Insurance Companies together with 12 insurance companies that had filed legal actions against the executive power challenging as unconstitutional Emergency Executive Decree No. 1654/02, and its extension, No. 1012/06, whereby it was stated that in view of the country facing an economic crisis and the higher local insurance costs, the Argentine air carriers were exempted from taking out local insurance. On 27 October 2015, the Supreme Court confirmed the Court of Appeal's decision, which held that the Emergency Executive Decrees were unconstitutional and that the ordinary procedure for the enactment of a law should have been followed.
Law No. 27,442 penalises cases of market distortion owing to an abuse of a dominant position that affect the general interest, imposing fines on companies whose conduct could be considered against the regulations of the Law. The legislation is intended to avoid concentration and manipulation of prices that result in price distortions that affect the economic public interest.
The Argentine Federation of Associations of Travel Agencies (FAEVYT) had initiated separate individual legal actions before the Federal Civil and Commercial Court of Appeals against several air carriers (Aerolineas Argentinas, LATAM, Copa, Aeroméxico, Gol) requesting the Court to establish the minimum percentage that the air carriers should pay to travel agencies as a reasonable commission or remuneration for their services to cover involved costs and an economic benefit in relation to the service rendered by the travel agencies. FAEVYT argued that in their decision to eliminate payable commissions to the travel agencies, the air carriers had abused their dominant position. FAEVYT argued that the terms and conditions of the IATA travel agency agreement should be comprehensively reviewed, in particular the terms related to agents' remuneration. Having reached an understanding, the plaintiff withdrew the complaints filed, having requested to the Court that all proceedings should be terminated.13
Depending on the personal characteristics of the deceased, including age, life expectancy and income, the life value would be assessed in order to consider the amount of compensation to be awarded within the limitations established by the Aeronautical Code.
Establishing liability and settlement
In some provinces and the federal jurisdiction, a mediation stage is mandatory before litigation at court in relation to civil and commercial liability claims. If the parties cannot reach settlement during mediation, the claimant is entitled to start legal action before the courts.
Article 228 of the Aeronautical Code provides that claims for liability compensation arising from damage caused to transported passengers, baggage or cargo in domestic air carriage should be legally filed within one year. The term is calculated from the arrival at destination or the day when the aircraft should have arrived or the detention of transport, or the moment when the person is declared absent with presumption of death.
On 27 August 2018, the Federal Civil and Commercial Court of Appeals, Chamber II, admitted the plaintiff's appeal and revoked the first instance court's decision that had considered that the procedure should follow the terms pursuant to the Civil and Commercial Procedural Code instead of the shorter terms pursuant to Consumers' Law No. 24,240. The Prosecutor stated that pursuant to Section 53 of Law No. 24,240, all claims based on said Law should be followed pursuant to the shortest applicable procedure unless the court could ground its decision to consider applicable another procedure based on the complexity of the matter. This decision implied that the air carrier had only five days instead of 15 days to file its answer to the complaint together with the supporting means of evidence.14 The same Court of Appeals followed the same criterion in Milillo, Christian v. UAL on 5 September 2018.
On 29 October 2018, the National Commercial Court of Appeals, Chamber A, upon the plaintiff's appeal revoked the first instance court's decision that held that the federal civil and commercial courts should assess the claim filed regarding compliance of the alleged unilateral cancellation of the carriage agreement by the defendant air carrier. The plaintiff argued that there had been a fraudulent advertisement by the involved travel agencies and the defendant air carrier, which had unilaterally cancelled the offered flight from Santiago de Chile to Sydney during a CyberMonday promotion campaign. The air carrier argued that there had been a technical mistake that resulted in the announcement of the flight at an extremely low fare. The plaintiff rejected the reimbursement of the paid amount and requested compliance of the carriage agreement pursuant to the published terms and conditions. The court of appeals found that there had been a situation concerning the advertisement for the offer regarding the commercialisation of certain fares and that there was no specific connection with aviation regulations. Consequently, it held that the commercial court should assess the case since commercial regulations were involved and the federal civil and commercial courts should not be considered as the competent courts.15
On 22 November 2018, the National Commercial Court of Appeals, Chamber E, upon an air carrier's appeal in relation to the lower court's decision that had rejected the challenge filed regarding the lack of jurisdiction, held that in relation to a damages claim based on the sale of air transportation tickets by a travel agency the commercial courts should be considered the appropriate jurisdiction taking into consideration that it should be considered a commercial matter ruled by commercial regulations regardless of the air transportation service, and consequently the federal courts should not be involved. The claimants had filed legal actions based on Consumers' Defence Law No. 24,240 seeking compensation for alleged damage sustained due to the air carrier's mistake arising from the issuance of the claimants' minor son's ticket after a change of the plaintiff's original ticket, who could not board due to her medical health condition.16
ii Carriers' liability towards passengers and third parties
Title VII of the Aeronautical Code (Sections 139 to 174) rules air operators' liability in relation to damage caused to carried passengers, luggage, cargo and third parties on the surface.
The air carrier shall be liable for the damage resulting from the death or corporal injury sustained by a passenger because of an accident on board or during takeoff or landing operations. The air carrier shall also be liable for delayed arrival at destination and in cases of destruction, loss or damage to registered luggage and cargo.
Liability shall be limited, but the air carrier shall not be entitled to limit its liability where damage derived from its wilful misconduct, or that of the persons under its responsibility in the performance of their duties. The air carrier will not be held liable if it proves that it had taken all the necessary measures to avoid the damage, that it was impossible to take them or if it proves that the person who suffered the damage contributed to it.
Any person suffering third-party damage on the ground shall be entitled to relief just by proving that the damage was caused by an aircraft in flight, a person or item falling or being thrown from it, or its unusual noise. However, there shall be no possibility of relief if the damage was not a direct consequence of the event giving rise to it.
Argentina has ratified the Warsaw Convention, the Hague and Montreal Protocols as well as the Montreal Convention as detailed in Section II.i.
In cases of aviation accidents, criminal proceedings have also been pursued that have involved company officers as well as private and public officers such as airport managers and airport security managers, airport weather observers, airport administrators and air traffic directors, among others.
In Damiani, Jorge Claudio v. Delta Airlines, the Federal Civil and Commercial Court of Appeals, Chamber III, held on 4 May 2017 that the defendant air carrier should compensate the claimant who sought compensation for moral and material damage as a result of missing a fishing tour and the loss of his professional fees as a journalist, arguing that he failed to submit his article because of the delay and cancellation of his flights. The air carrier denied liability and argued that the Las Vegas–Atlanta flight was delayed at departure owing to a mechanical fault (loss of hydraulic fluid) that required non-scheduled maintenance, which meant that the claimant missed his connecting flight from Atlanta to Manaus. The next flight was cancelled owing to a technical fault in the satellite communications software. The air carrier appealed the decision held by the first instance court because the court held that the air carrier should be considered liable and because it had admitted the plaintiff's requested damages regarding loss of profits and mental distress. The Federal Civil and Commercial Court of Appeals confirmed the first instance court's decision and held that the delay for technical reasons should be considered as contractual liability pursuant to Section 522 of the Civil Code, and that the air carrier should be held liable for the delay that deprived the claimant of the possibility to decide how and where he wanted to spend his time. To avoid liability, the air carrier should have proved that it had taken all necessary measures to avoid damage or that it was impossible to take them because it was a completely unexpected event, such as a fortuitous event or a case of force majeure. The Appellate Court took into consideration the Civil and Commercial Code (in force since 1 August 2015), which provides that damage compensation should cover breach of the victim's personal rights, psychophysical health, mental distress and any other damage that interferes with the claimant's life.
In In re Spivak, Ricardo Victor v. American Airlines, the Federal Civil and Commercial Court of Appeals, Chamber III, on 27 April 2017, awarded compensation to a claimant who argued that as a result of the cancellation of his connecting flight to Los Angeles he had lost earnings as he could not attend business meetings in Japan and China. His flight had to return to Buenos Aires Airport after two hours owing to a technical fault. The aircraft was ready to fly the next morning but the crew had exceeded its time of service. The Court held that the defendant air carrier failed to provide evidence that either it had taken all necessary measures to avoid damage or that it was impossible to take them. The Court further held that the following circumstances had not been clearly stated: why the technical fault had not been found during maintenance checks; why it was not possible to solve it within a reasonable period of time; why it had not been possible to obtain an alternative aircraft within 24 hours after the originally scheduled time; or why there was no arrangement in place to have a substitute crew for cases where the appointed crew exceeds its time of service. The Court ruled that the air carrier had to pay damages including loss of earnings.
iii Product liability
With regard to product liability, the Aeronautical Code refers to the air operator. The manufacturer's liability may be applicable in relation to civil legislation governing liability arising from defective products.
The aircraft operator is the person using the aircraft legitimately on his or her own behalf, even not for profit. The owner shall be considered the aircraft operator except when said capacity has been transferred by means of an agreement duly registered before the National Aircraft Registry (Articles 65 and 66 of the Aeronautical Code).
The registration of the agreement releases the owner from the operator's liabilities, which shall be the exclusive responsibility of the air operator. If the agreement has not been registered, the owner and the operator shall be jointly and severally liable for any violation of applicable regulations or damage produced because of the aircraft (Article 67 of the Aeronautical Code).
According to Article 144, the air carrier's liability in relation to passengers should be limited to the amount equal in pesos to 1,000 argentinos oro.
In relation to damage sustained by third parties on the surface, according to Article 160 of the Aeronautical Code the operator shall be liable for every accident up to the limit of the amount equal, in pesos, to the number of argentinos oro resulting from the following scale, according to the quotation they have at the moment when the event generating the liability takes place:
- 2,000 argentinos oro for aircraft heavier than 1,000 kilogrammes;
- 2,000 argentinos oro plus 1.5 argentinos oro for each kilogramme over 1,000 for aircraft heavier than 1,000 and lighter than 6,000 kilogrammes;
- 10,400 argentinos oro plus 1 argentinos oro for each kilogramme over 6,000 for aircraft heavier than 6,000 and lighter than 20,000 kilogrammes;
- 25,000 argentinos oro plus 0.5 argentinos oro for each kilogramme over 20,000 for aircraft heavier than 20,000 and lighter than 50,000 kilogrammes; and
- 43,600 argentinos oro plus 0.37 argentinos oro for each kilogramme over 50,000 for aircraft heavier than 50,000 kilogrammes.
Compensation in cases of death or injury shall not exceed 2,000 argentinos oro per deceased or injured person.
In cases of personal injuries or property damage, half of the amount to be distributed shall be preferentially allocated to compensate the personal injuries. The remainder of the total amount to be distributed shall be shared proportionally between the compensation for property damage and the part of the other compensation that is not covered.
For the purposes of this chapter, 'weight' means the maximum weight authorised by the aircraft airworthiness certificate.
Pursuant to Article 162, the operator shall not be entitled to limit its liability when damage derives from its wilful misconduct or that of the persons under its responsibility when performing their duties.
Moral damages are generally awarded in most liability cases even in cases of delayed arrival at destination. There are no provisions in relation to condolence money.
As from 28 May 2019, as per ANAC Resolution No. 368/2019, during a 45-day period, the draft of the new regulation that will be applicable to drones was opened to receive opinions from any interested party willing to participate and cooperate in the final version of the regulation.
On 6 December 2019, ANAC Resolutions Nos. 880/2019 and 885/2019 were issued whereby the new regulation that would enter into force from 1 July 2020 was established.
On 1 July 2020, ANAC Resolution No. 178/2020 was published in the Official Gazette, whereby the date when the new regulation that would enter into force was adjourned until 31 December 2020. Due to covid-19 restrictions, the implementation of the needed measures to allow the required training programmes, as well as the adaptation of rules and the reorganisation of applicable registrars, had not been possible.
On 29 May 2021, ANAC Resolution No. 159/2021 established a third adjournment in relation to applicable dates when the regulation would enter into force having established different dates depending on the applicable procedures as follows: re-registration would be due on 31 July 2021; and the authorisations previously granted should be converted into certificates of competence prior to 31 August 2021.
The National Safety Board Civil Aviation, a new agency that in 2020 replaced the historical JIAAC, continued using the online anonymous form created by the JIAAC and the 24-hour contact centre where aviation accidents and incidents can be reported. On 4 October 2013, the JIAAC issued Resolution No. 64/13, which, pursuant to Annex 13 of the Chicago Convention, established that reports obtained from the JIAAC during the course of an investigation should be kept confidential at the Investigations Department of the JIAAC, including:
- all the depositions obtained;
- the communications between the persons who have participated in the operation of the aircraft;
- medical or personal information of persons involved in the accident or incident;
- conversation recordings of pilots' positions and their transcripts;
- conversation recordings of air transit control agencies and their transcripts;
- image recordings of pilots' positions; and
- the opinions stated in the analysis of the information, including voice registration recordings.
The year in review
In Aidelman, Aylen v. El Al Israel Ltd,17 the Federal Civil and Commercial Court of Appeals confirmed, on 30 May 2019, the decision held by the lower court. This had held that Argentina could not be considered as the appropriate jurisdiction since it could not be included in any of the possibilities described in Article 33 of the Montreal Convention. The carriage agreement was issued and paid through the internet via a website located in Israel to fly from France to Israel. El Al Israel Ltd had both its domicile and principal place of business in Israel. Both parties appealed the decision held by the first instance court. The plaintiff argued that the defendant air carrier had a branch office in Argentina highlighting the fact that the air carrier had a local place of business through which the contract had been made pursuant to Article 33 of the Montreal Convention and the ticket was paid with a local credit card. The Federal Civil and Commercial Court of Appeals rejected the plaintiff's argument on the grounds that Article 33 has not established that the location of the finance entity that issued the credit card used to pay for the ticket through the internet could be admitted to establish the jurisdiction. The Federal Civil and Commercial Court of Appeals further clarified that the foro actoris (consumer's usual domicile or residence) had not been indicated to establish jurisdiction.
In Abraham Risso, Fernanda v. United Airlines Inc et al,18 the Commercial Court of Appeals confirmed on 4 April 2019 the decision held by the first instance court. This had dismissed the class action filed by 188 passengers who filed legal actions against UAL and seven travel agencies where claimants filed legal actions seeking either their tickets originally issued by UAL to travel from Santiago de Chile to Sydney, or payment of the average amount of a ticket for that route plus emotional distress sustained plus punitive damages, interest accrued, fines and litigation costs. The claimants argued that during a 'travel sale', the defendant air carrier published on its website – as also did several travel agencies that had joined the travel sale – low-cost tickets for the indicated route. The claimants acquired their tickets and received confirmation. However, on the same date, the defendant air carrier cancelled the bookings via email without offering either an alternative or compensation. The first instance court held that it could not be considered that individual claims would be disregarded taking into consideration the parameters set by the Supreme Court Halabi precedent to determine the admittance of the class action.
The claimants appealed, arguing that consumers' personal and property rights were being affected due to the same facts and, consequently, that the requirement for a class action has been met. However, the Court of Appeals found that there was no strong need of the state to grant protection to pure individual property rights without any collective incidence since there were no social implications. Furthermore, the Court of Appeals considered that each claimant had individual and different agreements regarding terms of payment, ancillaries that could have been paid and different arising damages, so it could not be held that the facts were absolutely the same for every plaintiff. Finally, the Court also referred to the fact that the affected rights had no connection with any disadvantaged or weakly protected group. Since each claimant could validly defend the rights claimed, the class action as such should be dismissed on the grounds that only property individual rights were at stake without the existence of homogeneous facts and without any social incidence. Pursuant to Section 88 of the Civil and Commercial Procedural Code, the individual actions filed by the plaintiffs could be followed as such and linked due to the characteristics of the claims in order to avoid contradictory decisions.
In Cabrerizo, Jimena et al v. UAL, the Commercial Court of Appeals received a docket on 1 July 2021 to assess the appeal filed by the plaintiff against the decision held by the First Instance Court on 31 May 2021, which had dismissed the complaint admitting UAL's arguments in relation to a technical mistake that saw published a fare that was 99.8 per cent lower than the real far,e highlighting the importance of good faith and the knowledge that plaintiffs have of applicable market fares.
On 23 December 2019, the Law of Social Solidarity and Productive Reactivation (Law No. 27,541) was passed. It was then regulated by Executive Order No. 99/2019 and General Resolution No. 4659/2020 issued by the tax authorities. These regulations declare and regulate the public emergency in economic, financial, fiscal, administrative, pension, tariff, energy, health and social matters. These new regulations establish a new tax called 'tax PAIS' (a tax for an inclusive and supportive Argentina) aimed at controlling foreign currency outflow and imposing a 30 per cent tax on travel and tourism-related purchases, including international air carriage. Law No. 27,541, Section 35 reads as follows:
A state of emergency is established, for the term of five fiscal periods as from the effective day of this law, a tax that will be applicable in all the territory of the country to the following operations: . . . (e) Acquisition of land, air, and water way passenger transport services to travel abroad as long as payment of said transaction requires access to the exchange market in order to exchange Argentine pesos to acquire foreign currency according to the terms of the applicable regulations.
Air carriers should act as collection agents.19 To this end, collection of this tax should be made upon collection of the ticket price or, for payment in instalments, the tax should be completely collected with the first payment, being clearly described in the ticket.20 The chargeable amount would be 30 per cent upon the price net of taxes and fees of each operation.21
On 16 December 2020 Tax General Resolution No. 4815/2020 was published in the Official Gazette; it establishes a new withholding tax amounting to 35 per cent over the tax PAIS. This withholding tax would be considered as advanced payment in relation to either income tax or personal assets tax depending on individual's tax position.
On 27 April 2020, Resolutions Nos. 143 and 144 issued by ANAC were published in the Official Gazette. Resolution No. 143/2020 states that, due to the sanitary emergency caused by covid-19, air carriers could only commercialise air transport services for passengers from, to or within the national territory as long as they have been formally authorised by the Argentine Civil Aviation Administration pursuant to the applicable procedure in accordance with ANAC Resolution No. 100/2020 established for special services or any regulation that could be published in the future.22 The promotion and commercialisation of regular (scheduled) or non-regular (non-scheduled) services in violation of Section 1 would be penalised pursuant to Executive Order No. 326/82.23 This measure shall be enforced immediately.24 ANAC Resolution No. 144/2020 states that flights would be authorised as from 1 September 2020.
On 1 July 2020, ANAC Resolution No. 178/2020 was published in the Official Gazette, whereby the date when the new regulation would enter into force was adjourned until 31 December 2020. Due to covid-19 restrictions, the implementation of the needed measures to allow the required training programmes, as well as the adaptation of rules and the reorganisation of applicable registrars, had not been possible.
At the time of writing, restrictions have continued in place, including a reduction of flights to and from several countries due to the ongoing development of the covid-19 pandemic and the appearance of new covid strains.
On 10 December 2020, ANAC Official Gazette Resolution No. 329/2020 was published, which clarifies that specific aviation regulations should be considered applicable to air carriage agreements, having stated in this new Regulation that Resolution No. 424/2020 issued by the Secretary of Commerce should not be considered applicable to scheduled air transport services (domestic and international) of passengers, baggage and cargo (Article 1°).
Resolution No. 424/2020, issued by the local Secretary of Commerce, establishes that a mandatory 'regret button' link should be included in websites through which goods or services are sold online, thereby enabling consumers to be able to retract their purchases within a term of 10 days. As per Resolution No. 424/2020, consumers who trigger the regret button should be informed within a term of 24 hours of a regret identification code identifying their requests of regret, as applicable under Consumers' Defence Law No. 24,240. It is worth mentioning that Executive Order No. 565/08, issued in 2008, states that Law No. 24,240 would be subsidiarily applicable to matters related to the air carriage agreement taking into consideration the characteristics of aviation law, which include in its recitals, among other things, EU regulations as well as the international court precedents in Sidhu v. BA and El Al v. Tseng. Consequently, Section 63 of Law No. 24,240 was amended to state that 'In relation to the air carriage agreement, the regulations of the Aeronautical Code, international treaties, and subsidiarily, this Law would be applicable'. Several court cases have upheld that an air carriage agreement should be ruled by its specific regulations. However, there are court precedents that have upheld that Consumers' Defence Law and Civil and Commercial Code regulations that provide consumers with a 10-day term to withdraw their acceptance in the case of agreements entered into outwith the place of business (i.e., online sales) should be applicable, having imposed fines against air carriers having considered applicable the Consumers' Defence Law while disregarding specific applicable aeronautical regulations.
ANAC Resolution No. 329/2020 further provides that air carriers should include on their websites, within a 60-day term as from the publication of this new regulation, a simple and fast mechanism, similar to the referred-to regret button, that enables users to timely exercise their right of refund pursuant to previously informed conditions applicable to an air carriage agreement (Article 2°).
On 25 June 2021, the authorities issued Administrative Decision No. 643/2021, which reduced to only 600 passengers per day the amount of inbound traffic allowed into Argentina in an attempt to reduce the risk of new infections due to the delta variant of covid, having maintained previously established restrictions. This situation has triggered severe complaints from IATA and the local industry, including air carriers and travel agencies, which have maintained meetings with the authorities to request an increase in the number of passengers to be allowed to enter the country. In Bittar, Nazario et al v. American Airlines,25 filed by passengers who argued that their flight had been cancelled without their having been informed of the date of their new flight to return to their country from the US, the Federal Court of Cordoba No. 2 ordered on 5 July 2021 that the defendant air carrier should provide the plaintiffs with accurate information within 72 hours in relation to their new flight, stating the date and time of departure.
On 9 July 2021, the authorities issued Executive Order of Necessity and Urgency No. 455/2021 whereby they extended until 6 August 2021 restrictive measures due to the pandemic, and Administrative Decision No. 683/2021, which increases gradually the number of passengers allowed to arrive in the country to a maximum of 7,000 per week.
1 Ana Luisa Gondar is a legal counsel at Gondar & Asociados.
2 Argentine Criminal Code, Article 190.
3 Argentine Criminal Code, Article 194.
4 Argentine Criminal Code, Article 195.
5 Argentine Criminal Code, Article 196.
6 Aeronautical Code, Article 8.
7 Aeronautical Code, Article 9.
8 Aeronautical Code, Article 10.
9 Aeronautical Code, Article 11.
10 Aeronautical Code, Article 12.
11 Aeronautical Code, Articles 185 to 190.
12 Docket No. 153/02 – Federal Civil and Commercial Court of Appeals – Chamber I – Ramirez, Reche de Serrano Maria v. Estado Nacional Ministerio de Defensa Fuerza Aerea Argentina et el.
13 Docket No. 4762/2017 – FAEVYT v. Compañía Panameña de Aviacion; docket No. 4759/2017 – FAEVYT v. GOL Linhas Aereas; docket No. 4757/2017 – FAEVYT v. Aerovias de Mexico; docket No. 4760/2017 – FAEVYT v. LAN Airlines et al; docket No. 9062/2016 – FAEVYT v. Aerolineas Argentinas.
14 Docket No. 4310/2018 – Sequeira Wolf, German v. UAL.
15 Docket No. 16221/2018 – Abraham Risso, Fernanda et al v. UAL.
16 Docket No. 669/2018 – Rozboril, Marcelo Carlos et al v. LAN Peru SA Sucursal Argentina.
17 Case No. 2649/2017, Aidelman, Aylen v. El Al Israel Ltd.
18 Case No. 16221/2018, Abraham Risso, Fernanda v. United Airlines Inc et al.
19 Law No. 27,541, Section 37.
20 Law No. 27,541, Section 39.
21 Law No. 27,541, Section 39.
22 Resolution No. 143/2020, Section 1.
23 Resolution No. 143/2020, Section 2.
24 Resolution No. 143/2020, Section 3.
25 Court docket No. 5249/2021.