Hu v. an aviation holding company limited by shares, a dispute over an air passenger transportation contract
- On the basis of preferential application of international treaties, the parties may negotiate a specific amount of compensation
keyword
- civil
- Contract of Carriage of Passengers by Air
- Foreign-related commercial matters
- International treaties apply
- Autonomy of will
Basic facts of the case
Plaintiff Hu claimed that Hu took a flight from Rome, Italy to Chongqing, China, on an airline flight, and was actually delayed for more than seven hours. According to the relevant provisions of the General Provisions on Compensation and Assistance to Passengers in the Event of Refusal, Cancellation or Long Delay of Flights (hereinafter referred to as EU Regulation No. 261) promulgated by the European Union in 2004, Hu requested compensation of 600 euros to an airline by telephone after getting off the plane, and the airline called back to confirm that it met the compensation provisions of EU Regulation 261 and compensated Hu with an exchange rate of RMB 4,693 on the same day. The next day, Hu uploaded the materials according to the requirements on the text message sent by an airline and the link attached to it, but the airline did not pay compensation as agreed. Therefore, Hu sued the court, demanding that an airline compensate 4,693 yuan and the loss of capital occupation in accordance with the standard stipulated in EU Regulation 261.
An airline argued that compensation for delay should not be made in accordance with Regulation (EU) 261 in this case, but should be based on the airline's general conditions of carriage.
After trial, the court found that on October 1, 2019, Hu planned to take a ×× flight under the name of an aviation holding company limited by shares (hereinafter referred to as an airline) from Rome, Italy to Chongqing, China, but the flight did not take off on time. An airline provided meals and rest areas for passengers to wait for during the delay. On October 8, 2019, the customer service staff of an airline called Hu to say that the flight delay met the conditions of more than 4 hours and more than 3,500 kilometers stipulated in EU Regulation 261, and the airline could compensate each person 600 euros, which was converted into about 4,693 yuan, and asked to apply for compensation according to 4,693 yuan. Hu agreed on the phone. The customer service staff informed Hu that he would send a text message to his mobile phone and explain the process of applying for compensation. On October 9, 2019, an airline issued an "Abnormal Flight Certificate" to Hu, proving that the flight involved in the case was affected by an aircraft failure, resulting in a flight delay of more than seven hours. On the same day, an airline sent a text message to Hu's mobile phone, stating "Hello! Regarding your claim for ×× flight on 2019-10-01, our company is processing, please supplement the relevant application materials through the link below: ....... Subsequently, Hu uploaded his identity documents, power of attorney, etc. according to the requirements of the link. An airline did not pay compensation.
On November 11, 2020, the People's Court of Chongqing Pilot Free Trade Zone rendered the (2019) Yu 0192 Min Chu No. 16677 Civil Judgment, ordering the defendant airline to pay the plaintiff Hu a compensation of RMB 4,693 for flight delays, and rejecting Hu's other claims. On July 19, 2021, the Chongqing No. 1 Intermediate People's Court rendered the (2021) Yu 01 Min Zhong No. 3610 Civil Ruling: allowing the airline to withdraw the appeal.
Reasons for the Adjudication
The effective judgment of the court held that the focus of the dispute in this case is as follows: 1. Should international conventions be applied in priority in this case? if so, which international convention should apply; 2. Whether the content of the autonomy of the will of the plaintiff and the defendant can be allowed.
First, on the question of whether the international convention should prevail in this case. From the perspective of the nature of international conventions, international conventions are the prior recognition of common interests and general legal principles generally recognized between States, and can also be regarded as an agreement of will between States, so they should take precedence over domestic law. From the perspective of the principle of convergence between international conventions and domestic law, continental law provides for the application of international treaties, domestic laws and international practices in order to fulfill the obligations of States parties to comply with international treaties. Article 142 of the General Principles of the Civil Law of the People's Republic of China stipulates: "Where the provisions of international treaties concluded or acceded to by the People's Republic of China differ from the civil laws of the People's Republic of China, the provisions of the international treaties shall apply, except for the provisions of the People's Republic of China that the People's Republic of China has declared reservations." Where there are no provisions in the laws of the People's Republic of China or in international treaties concluded or acceded to by the People's Republic of China, international practices may apply. Article 184 of the People's Republic of China Civil Aviation Law also provides the same provisions as the foregoing. It can be seen from this that the application of international treaties takes precedence over the application of domestic laws is a general provision of the mainland on the order of application of international treaties. To sum up, in this case, the international treaties to which the mainland is a party should be applied first, and the provisions of the continental law should be applied if there are no provisions in the international treaties.
Secondly, on the question of what international convention should be applied in the present case. Both the mainland and Italy are parties to the Warsaw Convention, the Hague Protocol and the Montreal Convention, and the present case also deals with the question of which of these conventions applies. Article 55 of the Montreal Convention provides: "This Convention shall prevail over any rules applicable to international carriage by air if: (i) the international carriage by air is performed between the parties to this Convention, which are also parties to the following treaties: (i) the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929; (b) the Protocol to Amend the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Warsaw, 12 October 1929, done at The Hague on 28 September 1955; ……。 "It can be seen that since Italy and mainland China are both parties to the Montreal Convention, and the provisions of the Montreal Convention provide that the provisions of the Convention shall apply precedently to the Warsaw Convention and the Hague Protocol, the Montreal Convention should take precedence in this case. At the same time, the Montreal Convention itself does not provide for the exclusion of its application, but provides in article 49 that "any provision of the contract of carriage and all special agreements concluded prior to the occurrence of the loss whereby the parties to the contract of carriage are in breach of the rules of this Convention, whether by choosing the applicable law or by varying the rules of jurisdiction, shall be null and void." Therefore, the parties in this case cannot preclude the application of the Montreal Convention by agreement.
Third, on the issue of whether the autonomy of the plaintiff and the defendant can be permitted by the Montreal Convention. According to the provisions of the Montreal Convention, the upper limit of the compensation amount paid by an airline to Hu for flight delay is about RMB 44,560.61. Article 27 of the Montreal Convention provides: "This Convention does not prevent the carrier from refusing to conclude any contract of carriage, waiving any defences available under this Convention or establishing conditions that are not inconsistent with this Convention." That is, the Montreal Convention allows the parties to exercise autonomy without violating the relevant provisions of the Convention. In this case, an airline and Hu reached an agreement on the issue of compensation for flight delays during a phone call, and the airline compensated Hu 4,693 yuan in accordance with the standards stipulated in EU regulations. It is worth noting that although an airline and Hu negotiated compensation in accordance with the compensation standard stipulated in Regulation (EU) 261, it does not mean that Regulation 261 will be the applicable law in this case. The Court's compensation in accordance with the standards set forth in Regulation (EU) No. 261 is based on the principle of autonomy of the parties and the determination of the parties to confirm the amount of compensation agreed upon by the parties under the premise of applying the provisions of the Montreal Convention.
Summary of the trial
If the place of departure and destination of international air carriage are Contracting States to the Warsaw Convention, the Hague Protocol and the Montreal Convention, the Montreal Convention shall prevail in accordance with Article 55 of the Montreal Convention. The Montreal Convention does not allow parties to exclude its application. However, the Montreal Convention allows the parties to exercise autonomy in respect of the amount of compensation for flight delays, subject to the relevant provisions of the Convention.
Associate indexes
Article 10 of the Civil Code of the People's Republic of China (Article 142 of the General Principles of the Civil Law of the People's Republic of China, as amended in 2009, applies in this case)
Article 184 of the People's Republic of China Civil Aviation Act
First instance: Chongqing Pilot Free Trade Zone People's Court (2019) Yu 0192 Min Chu No. 16677 Civil Judgment (November 11, 2020)
Second instance: Chongqing No. 1 Intermediate People's Court (2021) Yu 01 Min Zhong No. 3610 Civil Ruling (July 19, 2021)