AERODROME/AIRPORT OPERATOR LIABILITY IN COLOMBIA: WHICH IS THE APPLICABLE LIABILITY REGIME?

AERODROME/AIRPORT OPERATOR LIABILITY IN COLOMBIA: WHICH IS THE APPLICABLE LIABILITY REGIME?

¡AGENDA YA TU CITA!

AERODROME/AIRPORT OPERATOR LIABILITY IN COLOMBIA: WHICH IS THE APPLICABLE LIABILITY REGIME?

By: George Symington Associate Lawyer of the law firm Estudios Palacios Lleras

In recent years the number of claims against airport/aerodrome operators in Colombia has
increased. The claims range from lost luggage to aircraft ground damages. In this article we will
address the ongoing discussion regarding which is the applicable standard of legal liability airdrome
operators. The discussion is relevant for the aviation industry and also for insurers regarding ARIEL
insurance policies (Airport Owners and Operators Liability Insurance Policy).

Different legal liability standards in Colombia

Under Colombian law there are two main liability regimes: (i) negligence or fault liability; and (ii)
strict liability. Under the fault liability regime the defendant can be discharged from liability by
demonstrating its diligence under an abstract fault test and/or by proving that an external factor
caused or contributed towards the damages (i.e. victim’s own negligence, third-party acts or force
majeure/act of god). In contrast, under the strict liability regime the defendant’s fault or negligence
is irrelevant and the defendant can only be discharged from being liable by proving that an external
factor caused the damages.

As a general rule, the plaintiff has the burden of proof to demonstrate the defendant’s liability,
therefore under the fault liability regime, the plaintiff must prove (i) the defendant’s negligence; (ii)
the causal link between the defendant´s actions and the damages caused; and (iii) demonstrate the
actual damages that he/she sustained as a consequence of the defendant´s actions. In contrast,
under a strict liability regime the plaintiff only has to demonstrate (i) the causal link between the
defendant´s actions and the damages; and (ii) the actual damages that he/she sustained as a
consequence of the defendant´s actions.

There are other special liability regimes under Colombian law, like the aircraft operator’s liability
regarding death or bodily injuries to passengers for domestic flights, under which the carrier cannot
be discharged from being liable even if an act of god or force majeure occurred, and negligence is
not required to be proven (this type of liability is the closest it gets to an absolute liability standard
of legal liability).

Under Colombian law there are two main ways to assess if the standard of legal liability is strict
liability: (i) If the legal rules which are applicable to the case explicitly state that the liability regime
is strict as for example in the case of (a) collisions between aircraft; (b) third-party damages caused
by ground events; and (c) death/bodily injury to passengers; and (ii) if the case refers to an
abnormally dangerous activity e.g. automobile accident (abnormally dangerous activities are
regarded as such by the judicial precedent of Colombia’s high courts: the Council of State, the
Constitutional Court and the Supreme Court). On the other hand, the general rule under Colombian
law is that the applicable liability standard is negligence or fault liability.

Liability regulations regarding aerodrome/airport operators

The airport operator’s liability regime is established under Article 1817 of the Colombian
Commercial Code which states that the former will be liable for the damages caused as a
consequence of the aerodrome’s operation or for the services provided regarding aeronautical
infrastructure. The Article further establishes that the airport operator’s liability will be governed
pursuant to Articles 1881, 1886 and 1887 of the Commercial Code. The airport operator’s liability is
also established under Articles 14.3.1.2.1. and 14.2.1.2 of Colombia’s Aeronautical Regulations
(CAR) which basically re-phrases what the Article 1817 of the Colombian Commercial Code provides.

Articles 1881, 1886 and 1887 of the Commercial Code refer to damage caps for the carrier regarding
domestic flights. Article 1881 states that the carrier’s liability cannot exceed 25 000 grams of pure
gold for each passenger regarding death or bodily injury; Article 1886 provides that the carrier’s
liability cannot exceed 200 grams of pure gold for all the hand luggage per person and Article 1887
establishes that that the carrier’s liability cannot exceed 10 grams of pure gold per kilogram
regarding hold baggage.

Discussion regarding the applicable liability regime regarding airport operators

Considering the abovementioned regulations, Article 1817 of the Colombian Commercial Code does
not explicitly state if the airport’s operator is fault or strict liability. Furthermore, Colombia’s high
courts have not handed down a concluding judicial precedent regarding this matter.

Consequently, one could argue that as Article 1887 does not explicitly state that the airport’s liability
is strict, the liability regime that is applicable is negligence/fault liability given that this is the general
rule under Colombian law. In contrast, one could argue that, as airport operators carry out
abnormally dangerous activities such as for example aircraft refueling, therefore, the applicable
legal liability regime is strict liability. However, aircraft operators carry out all sorts of activities, for
example cleaning, which can hardly be deemed as abnormally dangerous activities. Therefore, this
matter is not crystal clear from a legal perspective.

In the past decades the Colombian State has conferred concession contracts to private entities to
operate airports. Therefore, an option to analyze the applicable legal liability standard regarding the
concessionaire is to examine the wording of the concession contract. If the concessionaire’s
obligation is of best efforts then the applicable standard of legal liability is equivalent to fault
liability, in contrast, if the concessionaire’s obligation is of result then the applicable regime will be
strict liability.

Conclusions

Until Colombian high courts proffer a decision regarding the applicable liability regime regarding
airdrome operators or until Article 1817 of the Colombian Commercial Code is modified (which is
highly unlikely to occur) there will be no final answer to this matter. However the following options
could provide some guidance in order to assess the airport operator’s liability or for insurers to deny
or provide coverage under an ARIEL insurance policy:

  •  If the activity that the aircraft operator was carrying out was an abnormally dangerous
    activity then the probable standard of legal liability is strict liability. In contrast, if the activity
    is not abnormally dangerous the probable liability standard will be fault liability.
  •  If the aircraft operator is a concessionaire, it is important to assess if the concessionaire’s
    obligation regarding the specific case was agreed as a best efforts or result obligation under
    the concession contract. If the wording refers to an obligation of result then the probable
    liability standard will be strict, instead if the contractual wording refers to an obligation of
    best efforts then the probable legal liability standard will be fault/negligence liability.
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