Yu-Lai Jin December 7 2022 Article 35 of Montreal Convention 1999: different interpretations by Chinese courts KaiRong Law Firm | Aviation - China Yu-Lai Jin Aviation IntroductionChina's judicial practiceCommentIntroductionThe Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) has more than 100 contracting parties and plays an important role in resolving disputes arising from international air transport and carriage. However, when it comes to the practical application of the Montreal Convention, different courts interpret its provisions differently, which may result in varying outcomes.Article 35 of the Montreal Convention is one of its most controversial provisions. It reads as follows:1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 2. The method of calculating that period shall be determined by the law of the court seised of the case. The description in the second paragraph of article 35 is the reason for the courts' varying interpretations. While some courts hold that it indicates that the lex fori can decide on whether to suspend, interrupt or extend the two-year limitation period, others do not, especially those under common law systems.This article introduces and analyses the views of the Chinese courts on article 35 of the Montreal Convention.China's judicial practiceA search through public channels retrieved a total of five cases involving the interpretation and application of article 35 of the Montreal Convention by the Chinese courts. Four of these cases held that the two-year period stipulated in article 35 is subject to the provisions of Chinese law on interruption of the statute of limitations and can be interrupted through litigation or other methods (eg, sending demand letters to the opposition). One of these four cases was selected as an exemplary case on foreign-related commercial trials by the Shanghai Pudong Court.Only one case held that the two-year period under article 35 could not be interrupted by non-litigation methods under Chinese law. This view was raised in a cargo damage case and was eventually adopted by the court.Among the four cases which supported the view that the limitation could be interrupted or extended by the lex fori, no detailed reasons were provided. Instead, it was simply held that "the method of calculating that period" in paragraph 2 of article 35 should include the suspension, interruption or extension of such period. Therefore, "the law of the court seized of the case" (ie, Chinese law) shall govern whether and how the two-year period can be suspended, interrupted and extended.Pursuant to Chinese law, the causes of interrupting the statute of limitations include:"the obligee requesting the obligor's performance";"the obligor agreeing to perform"; and"the obligee instituting an action or applying for arbitration".Therefore, the two-year period can be interrupted by litigation or other means.The court that held a different view to the others analysed and decided on the meaning of article 35 by looking at its context and logical structure. Most importantly, the court reached its conclusion – which was different to the conclusion reached in the four cases mentioned previously – after reviewing the Montreal Convention's support documents, which reflect:the draft background of the Montreal Convention; andopinions from academic authorities and a variety of foreign courts on the matter.Since the plaintiffs were not satisfied with this result, the case is under appeal and it is unclear whether the first-instance judgment will be upheld by the appeal court and become legally binding. Nevertheless, it is a good sign that the Chinese courts are digging more deeply into the true meanings behind international conventions and keeping up with the mainstream opinions from the international aviation law system.CommentEven though it appears that the cases which hold the view that the two-year period mentioned in article 35 of the Montreal Convention can be interrupted by the lex fori are currently in the majority, China is not a case law country. Therefore, different courts can consider the meaning of article 35 and make their own decision on the time limitation matter.Air carriers should be aware that if a passenger or a cargo owner brings a lawsuit in China, it is possible that a claim and demand letter sent by passengers or cargo owners will be deemed as an effective method to stop the running of the time limitation and the time-barred defence may not be supported.For further information on this topic please contact Jin Yu-Lai at KaiRong Law Firm by telephone (+86 21 5396 1065) or email ([email protected]). The KaiRong Law Firm website can be accessed at www.skrlf.com.