Introduction
Facts
Decision
Comment
According to the Convention on the Rights of Persons with Disabilities, Administrative Measures for Air Transport of the Disabled and other relevant laws, persons with disabilities enjoy equal rights to travel. However, in practice, it is not uncommon to hear of disabled people being prevented from taking flights in order to maintain air transport safety on the ground that they failed to apply for special care services in advance. This article discusses a case that considered the circumstances in which an airline's refusal to carry a disabled passenger will be deemed to be a breach of contract.
One evening, the plaintiff, who suffers from paraplegia, booked a flight ticket from Kunming to Chengdu that was scheduled to depart at 7:45am the next day. She did not declare that she was a disabled passenger when purchasing the ticket.
The next day, the plaintiff arrived at the airport alone and checked in at 6:41am. Later, she applied for a special narrow wheelchair service with the airport's general service desk. The defendant airline informed the plaintiff that she should have applied for the service in advance and that, to obtain a temporary application, she would have to be accompanied or hold a hospital certificate. As the plaintiff was unaccompanied and did not have a hospital certificate with her, the defendant airline refused to provide the plaintiff with the wheelchair.
Thereafter, the plaintiff passed the security check alone and arrived at the gate to board the flight. However, the defendant airline's staff refused to transport the plaintiff on the ground that she did not meet the boarding conditions of the flight.
The key issue in this case was whether the defendant airline's refusal to carry the disabled passenger constituted a breach of contract.
CAAC regulatory documents
According to the Measures for Air Transport of Persons with Disabilities (for Trial Implementation) issued by the Civil Aviation Administration of China (CAAC), disabled passengers must apply for the use of a narrow wheelchair (used for aeroplanes and assisting with boarding and disembarking) at the time of booking, and no later than 72 hours before the flight's scheduled departure time. Further, disabled passengers must check in at the airport three hours in advance of their flight.
However, in this case, the time that elapsed between the plaintiff booking her ticket and boarding the plane was no more than 12 hours. The plaintiff also failed to declare that she needed special services and assistance from the airline at the time of booking, and she arrived at the airport to check in less than three hours in advance of the flight. Therefore, the defendant airline's refusal to carry the plaintiff did not violate the provisions of the CAAC regulatory documents and complied with the operating procedures of its domestic passenger transport manual, which had been approved by the CAAC.
Air passenger transport agreement
A contractual air passenger transport relationship had been established between the parties, so they were directly bounded by the contract clauses. Passengers may be unaware of the specific requirements and conditions for transporting disabled passengers in the CAAC regulatory documents and domestic passenger transport manuals. Usually, passengers will focus on the specific flight time and price when booking.
Article 298 of the Contract Law stipulates that carriers must, in a timely manner, inform passengers of any major factors that would hinder their normal carriage and of any matters that must be noted for the purposes of safety. Therefore, it is the airline, rather than the passenger, that has the obligation to provide information on any such requirements and conditions.
In this case, when the defendant airline entered into the contract of transport with the plaintiff, it failed to explicitly inform the plaintiff of the special provisions and requirements for disabled passengers. It also failed to ask actively whether the plaintiff was disabled or indicate clearly on the e-ticket the specific requirements and provisions for disabled passengers. Further, its website had no special booking channel or window for disabled passengers. Therefore, it had to be deemed that the plaintiff and the defendant had not agreed on any special terms in the contract and the contract had included no special requirements for transporting the plaintiff.
Did the defendant airline's refusal to carry the plaintiff constitute a breach of contract?
As the defendant airline had failed to clearly inform the plaintiff of the special provisions and requirements for transporting disabled passengers, the plaintiff attempted to board the flight according to the normal procedure and time, which was an exercise of her contractual rights. For this, she was not at fault under civil law and therefore did not breach the contract. According to article 299 of the Contract Law, carriers must transport passengers according to the time and carriage schedule stated on the passengers' ticket.
In this case, the air passenger transport contract between the two parties was established and came into force from the time at which the plaintiff successfully booked the ticket on the defendant airline's website. As there were no special terms, the defendant had to perform its obligations according to the e-ticket. However, the defendant airline refused to carry the plaintiff, which constituted a breach of contract. It therefore had to bear corresponding civil liability according to law.
This case illustrates that the question of whether an airline's refusal to carry a disabled passenger constitutes a breach of contract must be determined according to the specific provisions of the air passenger transport contract between the two parties.
If the airline fails to inform the passenger of its special provisions and requirements for disabled passengers, and fails to incorporate such requirements into the air passenger transport contract, the airline's refusal to carry a disabled passenger on the ground that such passenger did not comply with the special provisions and requirements will be deemed a breach of contract. The airline will bear corresponding liabilities for the breach of contract, such as compensating the passenger for their air ticket and any other losses suffered.
The Provisions on the Administration of Passenger Services in Public Air Transport, effective from 2021, provide that airlines' general conditions for transport must include carrying standards for passengers who are seriously ill and others who require special treatment. Further, the general conditions for transporting such passengers must not be in conflict with national laws, regulations or the rules and regulations concerning civil aviation administration.
Therefore, it is important for airlines to incorporate detailed requirements and conditions for transporting passengers with special needs, especially disabled passengers, in their general conditions. Airlines must also make sure that their general conditions do not violate the Administrative Measures for Air Transport of the Disabled (a revised version of the Measures for Air Transport of Persons with Disabilities (for Trial Implementation)) and other provisions set out by the relevant laws and regulations.
More importantly, airlines must clearly inform passengers of any such general transport conditions and detailed requirements. This might include highlighted reminders or links to alert passengers to watch out for such conditions, even where tickets are purchased through a third-party travel agency or booking platform.
Further, airlines must set up corresponding channels and windows for passengers with special needs to inform airlines of their special circumstances and apply for the services or the assistance they require during the ticket booking process. This would help airlines to perform their notification obligation and also improve passengers' flying experiences.
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.