Regulation (EC) 785/2004 on insurance requirements for air carriers and aircraft operators establishes that the minimum insurance cover for liability in respect of passengers shall be 250,000 SDR.
The Court of Appeals of Barcelona, in its judgment 165/2016 dated 12 july 2016, considers that the minimum insurance cover established by Regulation (EC) 785/2004 is not irrelevant when assessing liability in air accidents because it is not for the Courts to disregard the European legislature’s intention by stating that such minimum insurance limits are only meant to cover a theoretical liability which, at least in Spain, may be inapplicable if the parameters applicable to car accidents are to apply.
In other words, the Court of Appeals of Barcelona is of the opinion that if the European legislature obliges air carriers to subscribe insurance cover for a minimum of 250,000 SDR for each passenger, this is because it considers that the maximum (sic) value of a personal claim must be at least that amount although it recognizes that not every human life can be assessed in the same way and that sometimes the compensation for permanent disability may be higher than that applicable to death.
Up to now, the Supreme Court has ruled that the parameters of damage assessment for car accidents are not of compulsory application outside its scope. However, the Supreme Court considers that it is recommendable to apply them to other personal injury matters in order to avoid arbitrary or inequitable results.
The Court of Appeals of Barcelona agrees with the Supreme Court in that the absence of predetermined criteria to assess damages may give rise to inequitable results but it considers that parameters applied to car accidents are not necessarily applicable to air accidents as Regulation (EC) 785/2004 establishes a better and more specific rule when regulating the minimum insurance cover.
In accordance with the above, the Court grants the claimants damages at the total amount of 250.000 SDR for the death of their son (and brother) in the air accident that took place in Barajas on 20th August 2008.
It is yet to be confirmed whether this judgment has been appealed by the insurance company Mapfre before the Supreme Court.
If the ruling of the Court of Appeal of Barcelona in the “Spanair judgment” prevails over previous case law applying the parameters for car accidents, Spanish courts may face difficulties when trying to assess other cases of personal injury and death taking into account that some minor injuries will not be serious enough to be compensated at 250,000 SDR and that not every death has to be compensated in the same way necessarily.
Another issue raised by this judgment is whether the courts will apply the same criteria when the personal injury or death occurs in a passenger vessel and Protocol 2002 to Athens Convention 1974 applies, since art. 4 bis of that Protocol also provides for minimum compulsory insurance in the amount of SDR 250,000.