Q&A

According to Article 2 of the Administrative Regulation No. 11/2004, an “air operator” means an entity that has obtained the operation license in accordance with the regulations ruling the civil aviation activities in Macao SAR to transport passengers, baggage, cargo or mail in aircraft. In simple words, it refers to an “airline”; an “aircraft operator” means a person or an entity that is responsible for operating an aircraft, including the owner of an aircraft having the aircraft registration under his/her own name.

After an airline has sold an air ticket to a passenger or has accepted an order from a cargo agent to transport cargo, the air transport contractual liability is then established. According to Article 2 of the Administrative Regulation No. 11/2004, an airline should compensate their clients for damages arising from the following situations: 

• Death, injuries of any kind or any other corporal damages sustained by the passengers in consequence of accidents occurring on board the aircraft or during boarding and disembarking;

• Destruction, loss, damage or delays of luggage and cargo, as long as such damages occur on board the aircraft or at any other moment in which the airline is responsible for the luggage or cargo;

• Delay in the carriage of passengers.

According to Article 1 of the Administrative Regulation No. 11/2004, this regime regulates the air operators or the aircraft operators who are registered in Macao SAR, who use the Macao civil aviation infrastructure or who fly over the air space of Macao SAR. In simple words, this regime is applicable to both local airlines and foreign airlines providing air services in Macao SAR. 

According to Article 4 of the Administrative Regulation No.11/2004, if an accident happens on board the aircraft or during boarding and disembarking that leads to passenger death or injury, unless the airline can prove that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the airline should compensate the passenger.

The responsibility of the air operator for the compensation of the damages mentioned above is unlimited, and the guilt of the airline shall always be presumed.

1. For damages not exceeding 113,100 Special Drawing Rights (Please click  to refer to the USD-equivalent on a particular day, and then exchange to MOP-equivalent) for each passenger, the carrier shall not be able to exclude or limit its liability, unless the airline can prove that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights.

2. The carrier shall not be liable for the damages to the extent that they exceed for each passenger 113,100 Special Drawing Rights (Please click  to refer to the USD-equivalent on a particular day, and then exchange to MOP-equivalent) if the carrier proves that:

1. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

2. such damage was solely due to the negligence or other wrongful act or omission of a third party.

In what regards the actual amount of compensation, the airline will define the amount after analyzing the impact of the situation on the passenger and taking into account the above mentioned uppermost limits of the compensation. In addition, in 15 days after the identity of the person having the compensation right has been verified, the airline should pay him/her an advancement for emergency expenses. The amount of this advanced payment should not be less than MOP150,000.00 in the case of passenger death.

According to Article 4 of the Administrative Regulation No. 11/2004, an airline should compensate a passenger for the damages caused by the delay in carriage. However, if the airline can prove that it has taken all reasonably required measures to avoid the occurrence of such damages or losses or if it demonstrates that taking such measures was impossible, the airline is not held responsible for the damages. Bad weather and air traffic control delays are situations that the airline cannot prevent. Therefore, when the delay is due to bad weather or air traffic control reasons the airline is not liable for damages caused to passengers.

In what regards the actual amount of compensation, the airline will define the amount after analyzing the impact of the situation on the passenger. According to Article 6 of the Administrative Regulation No. 11/2004 as amended by the Administrative Regulation No.19/2011, the uppermost limit to be paid by the airline to each passenger is 4,694 Special Drawing Rights (Please click  to refer to the USD-equivalent on a particular day, and then exchange to MOP-equivalent).

The above mentioned liability limits shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage recklessly and with knowledge that damage would probably result, provided that in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

According to Article 4 of the Administrative Regulation No.11/2004, an airline should compensate a passenger in the case of destruction, loss, damage or delay in carriage of his/her baggage, as long as such damages occur on board the aircraft or at any other moment in which the airline is responsible for the luggage. In addition, two points must be noted here: 1. If the damages are due to the characteristics, quality or defect of the baggage, the liability of the airline can be waived or limited. 2. If the airline can prove that it took all reasonably required measures to avoid the occurrence of such damages or losses or if it demonstrates that taking such measures was impossible, the airline is not held responsible for the delay. Bad weather and air traffic control delays are situations that the airline cannot prevent. Therefore, when the delay is due to bad weather or air traffic control reasons the airline is not liable for damages caused by the delay in carriage of baggage.

In what regards the actual amount of compensation, the airline will define the amount after analyzing the impact of the situation on the passenger. According to Article 7 of the Administrative Regulation No. 11/2004 as amended by the Administrative Regulation No.19/2011, the uppermost limit to be paid by the airline to a passenger is 1,131 Special Drawing Rights (Please   to refer to the USD-equivalent, and then exchange to MOP-equivalent), unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.

The above mentioned liability limits shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage recklessly and with knowledge that damage would probably result, provided that in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

According to Article 4 of the Administrative Regulation No.11/2004, an airline should compensate the consignor in the case of destruction, loss, damage or delay in carriage of cargo, as long as such damages occur on board the aircraft or at any other moment in which the airline is responsible for the cargo. In addition, two points must be noted here: 1. If the situation is due to the characteristics, quality or defect of the cargo, defective packing, an act of war or an armed conflict or an an act of public authority carried out in connection with the entry, exit or transit of the cargo the liability of the airline can be waived or limited. 2. If the airline can prove that it took all reasonably required measures to avoid the occurrence of such damages or losses or if it demonstrates that taking such measures was impossible, the airline is not held responsible for the delay. Bad weather and air traffic control delays are situations that the airline cannot prevent. Therefore, when the delay is due to bad weather or air traffic control reasons the airline is not liable for damages caused by the delay of carriage of cargo.

In what regards the actual amount of compensation, the airline will define the amount after analyzing the impact of the situation on the passenger. According to Article 8 of the Administrative Regulation No. 11/2004 as amended by the Administrative Regulation No.19/2011, the uppermost limit to be paid by the airline is 170 Special Drawing Rights per kg (Please click  to refer to the USD-equivalent, and then exchange to MOP-equivalent), unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor's actual interest in delivery at destination

The Administrative Regulations No. 11/2004 and No. 19/2011, as well as the Montreal Convention, cover the airline liability resulting from delay of passengers, baggage and cargo. In principle, flights cancellation is not covered.

A passenger wishing to claim for compensation must make the request to the airline in writing. In the case of damaged baggage, the request should be made to the airline within 7 days after the passenger has received the baggage; in the case of destruction, loss or delay in carriage of baggage, the passenger should make the request to the airline within 21 days from the date that such baggage should have been made available to the passenger. 

If the passenger has decided to take legal actions, he/she should file it with the competent court of the Macao SAR within 2 years after the incident has taken place. 

The compensation limits are summarized in the following table:

Note 1: SDR or Special Drawing Right is an international reserve asset, created by the International Monetary Fund (IMF) in 1969 to supplement its member countries’ official reserves. SDRs can be exchanged for freely usable currencies and used by member countries to settle international payment difference, or repay the IMF loans. For more details about SDR, please visit the IMF website at  http://www.imf.org/external/np/exr/facts/sdr.htm。

Note 2: For getting the MOP-equivalent on a particular day, you may go to the IMF website at http://www.imf.org/external/np/fin/data/rms_five.aspx，to get the USD-equivalent which is posted daily on the website, and then exchange to the Macau pataca.