After exploring the specific risks, the market and the general legal framework for aviation insuranceit's time to get to the heart of the matter: the the insurance contract itself. How is this essential agreement between insurer and insured constructed in the aviation sector? Far from being a monolithic block, the aviation insurance contract is in fact a complex assembly, a sort of crossroads where several legal disciplines meet and influence each other. Understanding its general structure and the rules that shape it is essential to grasping the real scope of the cover taken out. We will see how common land insurance law, transport law and aviation law each contribute in their own way to defining the contours of these contracts.
The imprint of terrestrial insurance law
Although the French Insurance Code, as we saw in our previous article, does not formally cover aviation insurance (considering it to be a 'major risk' with greater contractual freedom), in practice its influence is omnipresent. Insurers operating in France refer almost systematically to its provisions in their policies, partly out of habit and partly under the historical impetus of the supervisory authorities. This reference largely shapes the general structure of contracts and imports specific rules, particularly in the areas of liability and personal insurance.
The general structure of the contract, largely inspired by
A reading of the general terms and conditions of aviation insurance policies reveals a structure very similar to that of land-based insurance contracts. The formation of the contractFor example, although insurance is a consensual contract formed solely by the exchange of consents, airline policies often stipulate that the agreement is not perfected until the policyholder formally signs the document. However, the Court of Cassation has pointed out that such clauses do not call into question the principle of consensualism and that the contract is formed as soon as the parties agree, the policy having only evidential value (written proof) (Cass. 1re civ. 9 March 1999, no. 96-20.190). Similarly, cover is often linked to the actual payment of the first premium, a common practice in insurance.
L'obligation to declare risks by the insured at the time of subscription is another pillar inherited from common law. Air insurers explicitly refer to articles L. 113-8 and L. 113-9 of the Insurance Code concerning penalties for intentional (nullity of the contract) or unintentional (reduction of the proportional indemnity, the so-called RPP rule) misrepresentation. There is one subtle difference, however: while the Evin Act of 1989 abolished the requirement for policyholders to declare all the circumstances of the risk spontaneously in traditional land-based insurance policies, requiring them only to answer the insurer's questions accurately, aviation policies often retain the "spontaneous declaration" requirement. In this respect, they are similar to marine insurance (article L. 172-19 of the Insurance Code), where the insured must communicate all information known to him or her that is useful to the insurer in assessing the risk. The obligation to declare increases in risk during the term of the contract is governed by article L. 113-4 of the Insurance Code.
The rules concerning payment of premiumsthe consequences of non-payment (formal notice, suspension of cover, then termination of the contract), the terms and conditions of the contract, and the terms and conditions of the contract. cancellation (on expiry, after a claim, for a change in situation, etc.) and the prescription actions deriving from the contract (two-year period in principle, article L. 114-1) are also directly transposed from ordinary law. The same applies to the rules of territorial jurisdiction, which generally designate the court of the policyholder's domicile in the event of a dispute.
Finally, in terms of formalUnder the terms of the Insurance Code, air insurers endeavour to comply with the protective requirements of the Insurance Code, in particular article L. 112-4, which requires clauses stipulating nullities, forfeitures or exclusions of cover to be mentioned in very conspicuous characters in order to draw the insured's attention to them. This is an interesting example of the voluntary (or at least accepted) application of rules of public policy, the penalties for non-compliance with which would remain uncertain if we were to confine ourselves to the letter of the Code, which does not deal directly with aviation insurance.
Application of the rules specific to liability insurance
Civil liability insurance is a very important part of aviation insurance. Here again, the mechanisms are largely borrowed from ordinary law (Book I, Title II, Chapter IV of the Insurance Code). The right of the victim of an accident to take direct action against the insurer of the party responsible (thedirect action(Article L. 124-3 of the Insurance Code) is a cornerstone of the system, offering a guarantee of solvency to the victim.
To protect the insurer, policies usually stipulate that any admission of liability or amicable settlement reached between the liable insured and the victim without the insurer's agreement cannot be invoked against the insurer. However, this must be qualified: the admission of a simple material fact or the fact of having come to the aid of the victim (a legal or moral obligation) does not constitute an acknowledgement of liability.
In return for its guarantee, the insurer often reserves the right to conduct the trial The insurer may also reserve the exclusive right to settle with the victim. It may also reserve the exclusive right to settle with the victim.
In order to protect the victim, the Insurance Code provides that certain exceptions or forfeitures, although valid between the insurer and the insured, cannot be invoked against the victim bringing the direct action. This applies in particular to lapses for failure by the insured to fulfil his obligations after the loss has occurred (for example, late notification of the loss - see article L. 113-11). Similarly, the franchises and the proportional reduction in compensation (RPP) in the event of an initial inaccurate declaration of risk are not enforceable against the victim, even though the insurer may subsequently take action against its policyholder to recover these sums.
Finally, the legal subrogation (article L. 121-12 of the Insurance Code) applies: the insurer who has compensated its policyholder (or the victim via direct action) is automatically substituted in the rights and actions that the latter had against the third party who may have been responsible for the damage (another party involved, a defaulting supplier, etc.). If the insured prevents this subrogation by his or her own actions (for example, by discharging the liable party without the insurer's agreement), he or she risks losing the right to compensation.
The transposition of life and health insurance mechanisms
The individual accident insurance that may arise during a theft are also very much inspired by insurance of persons on land (governed by Book I, Title III of the Insurance Code). These include exclusions usual exclusions: damage intentionally caused or provoked by the insured, the consequences of his or her active participation in riots or acts of terrorism, obvious drunkenness or the use of narcotics as a determining cause of the accident, or the practice of particularly dangerous sports or activities that have not been declared. There may also be exclusions specific to aviation, such as participation in speed competitions or record attempts.
La definition of an accident covered is the classic case: any unintentional bodily injury sustained by the insured as a result of the sudden and unforeseeable action of an external cause.
The main feature of these insurances is that they are lump sum. Unlike liability insurance, which aims to provide full compensation for the loss suffered, personal insurance pays a lump sum or annuity, the amount of which is fixed in advance in the policy, irrespective of the actual economic loss. This is the case for the lump sum paid in the event of death or the compensation provided in the event of permanent disability (often calculated according to a contractual scale).
The consequence of this lump-sum nature is that these benefits do not, in principle, provide compensation. The insurer that pays them therefore has no right of recourse. subrogatory against the third party responsible for the accident, as specified in article L. 131-2 of the Insurance Code. The insured person (or his/her beneficiaries) can therefore combine the lump-sum compensation from his/her individual insurance with the compensation obtained from the party responsible for the accident (or his/her liability insurer). Exception: if the individual insurance contract provides for benefits benefitsIn the case of claims such as reimbursement of medical or hospitalisation expenses, the insurer is subrogated to the policyholder's rights in respect of these specific sums.
The specific contribution of transport law
While land-based insurance provides the general framework, transport law adds a special flavour to aviation insurance contracts, especially when they involve the movement of goods. Cargo insurance is an important branch of aviation insurance.
The contract of carriage by air as the basis
The existence of an air transport contract is obviously a prerequisite for the insurance of goods during this transport. This contract is defined by article L. 310-1 of the French Civil Aviation Code as the carriage of passengers, freight or mail by aircraft from a point of origin to a point of destination. Case law has clarified its application to various situations, sometimes far removed from traditional commercial transport (training flights, first flights, microlight flights, etc.).
The legal regime of this contract combines the general rules of transport (article L. 521-1 of the Civil Aviation Code refers to the rules of land and water transport, with some exceptions) and the specific provisions of air law, in particular the international conventions (Warsaw and above all Montreal). The carrier has specific obligations: compliance with packaging rules, duty of care (particularly for live animals), notification of arrival to the consignee, and above all the obligation to hand over the goods (simple unloading is not enough). In return, they enjoy a certain degree of freedom, justified by the constraints of air navigation: they generally commit themselves neither to strict deadlines nor to a precise itinerary.
Air transport damage compensation
Here, the influence of maritime law is palpable. The recipient of the goods has an active role to play on arrival. He must check the condition of the packages and immediately issue reserves to the carrier's liability. These reservations are essential if the carrier is then to be held liable. In the event of damage that is not apparent, a written protest must be sent to the carrier within the very short deadlines set by international conventions.
La air carrier liability is, as indicated above, governed by international conventions (even for purely French domestic carriage, under article L. 321-3 of the French Aviation Code). This system is generally based on a presumption of liability: the carrier is liable for damage occurring during carriage, unless it can prove that it took all the necessary measures to avoid the damage or that it was impossible to take such measures (which is difficult to obtain). However, this liability is most often limited in amount, according to the ceilings set by the agreements (per kilogram for goods, or per passenger).
It is precisely because of these limitations of liability that thefacultative insurance takes on its full meaning. Taken out by the consignor or consignee on his own behalf, it aims to guarantee the real value of the goods, independently of the carrier's (limited) liability. It constitutes property insurance, subject to its own rules (calculation of compensation based on insured value and depreciation), distinct from civil liability insurance taken out by the carrier.
The constraints imposed by air law
Finally, aviation law itself imposes direct constraints on the content and application of insurance contracts.
Imperative compliance with safety requirements
The insurability of an aviation activity is fundamentally linked to compliance with the safety standards laid down by aviation law. Insurance policies systematically reiterate this: cover is conditional on the aircraft being fit to fly, holding a valid certificate of airworthiness and being used within the limits laid down by this certificate and the operating authorisations. Similarly, flight crews must hold the required licences and qualifications and be in good standing.
Non-compliance with these fundamental rules generally constitutes an offence. exclusion of warranty. Police often list specific cases of exclusion linked to dangerous or illegal behaviour :
- Using an unauthorised airfield for take-off or landing (except in cases of force majeure).
- Intentional flight below the minimum safe altitudes stipulated in the regulations ("hovering"), except in cases of force majeure.
- Operating the aircraft outside the prescribed weight and/or centre of gravity limits.
The purpose of these clauses is to ensure that the policyholder takes all reasonable precautions and complies with the regulations in force, which is a sine qua non condition for pooling the risk.
Adapting cover to the diversity of activities
Air law does not just govern commercial transport. It governs a multitude of activities, including the operation of aerodromes, aeronautical construction and maintenance, flight schools, recreational aviation, aerial work, air events, etc. Each of these activities presents specific risks and is subject to specific regulations (sometimes including an insurance obligation). Insurers have therefore had to develop a range of cover adapted to this diversity, going beyond standard airline policies. These specific policies (Aerodrome Operator Liability, Aeronautical Professional Liability, Aero Club Insurance, etc.) incorporate the regulatory constraints specific to each activity.
Navigating the rules of the Insurance Code, transport law and aviation law to build a solid insurance policy requires specialist expertise. If you want to revise your current policies or negotiate new cover, our firm can help you.
Sources
- Insurance Code (general principles Titles I-III, in particular L. 112-1, L. 112-4, L. 113-4, L. 113-8, L. 113-9, L. 113-11, L. 114-1, L. 121-12, L. 124-3, L. 131-2, L. 172-19)
- Civil Aviation Code (in particular L. 310-1, L. 321-3, L. 521-1)
- Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) of 28 May 1999
- Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) of 12 October 1929
- Case law cited (e.g. Cass. 1re civ. 9 March 1999, no. 96-20.190)
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