SPAIN Trends and Developments Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna and Pedro Echeguren, Lopez-Ibor DPM
ter country is party to the treaty. For instance, a direct flight between New York and Los Angeles would not be subject to the CM, since it would only cover an itinerary between two cities within the United States of America, whereas if it had a stopover in any Canadian airport, it would be subject to the provisions of the treaty. As of the writing of this article (October 2024), the CM has been ratified by 137 different coun- tries, which includes most major airports in the world, as well as by the EU itself, as a subject of international law. Some noteworthy exceptions that have not rati- fied this treaty are Iran, Iraq, Libya, Nicaragua or Venezuela. Jurisdiction for the examination of disputes based on the CM – regulation at international level The first step for a passenger or a lawyer enter- taining the idea to sue an airline is to decide whether the legal action will be based either on the CM or the EU Regulation, as, depending on this choice, a different set or rules for the deter- mination of the jurisdiction will apply. As for disputes arising from the CM regarding delays and losses of luggage, the rules of juris- diction are established in its Section 33.1, which provides that the action must be brought in a country that has both (i) adhered to its treaty and (ii) meets one the three following criteria: • is the country of the airline’s domicile or main headquarters; • is the country of the airline’s office where the transport contract has been entered into, ie, the purchase of the flight tickets (in prac- tice, since nowadays virtually all tickets are
booked online rather than at an office, this criterion rarely applies); or • is the country of the flight’s destination. For instance, a Spanish passenger travelling from Japan to Italy on a flight operated by a British airline where the ticket was booked via the internet, would not be governed by the EU Regulation, since as explained above, it would be a flight departing from a country not belong- ing to the EU operated by an airline which would also be domiciled in a third country. However, taking into consideration that both Japan and Italy have adhered to the CM, the flight would be subject to the provisions of this treaty. If the passenger found that their flight had been delayed or cancelled or their luggage lost or damaged, they could elect to sue the airline before the courts of either the United Kingdom (the country of the airline’s domicile and main headquarters) or Italy (the country of the flight’s destination). For these disputes, other criteria such as the country of the flight’s departure or the passenger’s nationality would not be rel- evant, meaning that the courts of Japan and Spain would lack the jurisdiction to examine this case. On the other hand, if the dispute stems not from a delay or loss of luggage, but, rather, from death or physical injuries caused to the passengers, Section 33.2 enables them to sue the airline in the same jurisdictions as the ones previously set out, as well as in the country of residence of the passenger, provided that the following three requisites are jointly met: • the passenger had their residence in the country at the time of the accident;
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