In recent years the pet industry in China has accelerated, with the market having reached Rmb300 billion in 2020. With the increase in the number of people who have pets, individuals are increasingly choosing to take their pets with them when taking a flight. However, as they are live animals, pets are different from other cargos and, sometimes, accidents occur during air transport, causing the injury or death of pets. This article discusses a dispute caused by the death of a pet during air transport that may be of use to air carriers.
The plaintiff's pet was a golden retriever. On 5 August 2012 the plaintiff took a flight operated by the defendant's airline from Xining to Beijing. The golden retriever was consigned by the same flight. In China, pets cannot generally enter the cabin with passengers, but can be transported in the cargo compartment.
However, after the airplane arrived in Beijing, the defendant failed to deliver the golden retriever to the plaintiff and informed him that the golden retriever was lost. Two days later, the defendant told the plaintiff that the golden retriever had been found but had died.
In this case, the plaintiff sued the air carrier for:
- direct damages – namely, the value and cost of feeding the golden retriever;
- expenses relating to the litigation – including:
- autopsy fees;
- lost wages;
- the expense of expiating the sins of the dead;
- the expense of the farewell ceremony; and
- the expense of meals, communication, transport and accommodation
- moral damages.
The main issues in this case were whether:
- the defendant could enjoy the limitation of liability; and
- the moral damages could be supported.
Limitation of liability
Article 3 of the Provisions on the Limited Damages Liabilities of Carriers in Civil Aviation Transport states that the limit of damages liabilities for a passenger's consigned luggage and transported goods is Rmb100 per kilogram.
However, article 132 of Civil Aviation Law states that the carrier has no right to invoke these provisions if it is proven that:
- a loss during air transport is caused by intentional or indiscreet actions, or no action;
- the carrier, or the employees or agents thereof, knew of the probability of the loss.
The plaintiff applied to the court for investigation and evidence collection. After checking the video footage, the court found that the loading and unloading staff had directly pushed the air box containing the golden retriever from the trailer to the ground, which had caused the box to fall to the other side when landing. After that, the air box had been moved to a trolley, but the golden retriever had escaped due to the damage at the bottom of the flight case during this period.
The court held that during the unloading operation, the staff should have known that there was a living animal in the air box, and that they had failed to fulfil their duty of care. There was a direct causal link between the death of the golden retriever and the improper operation of the staff. Therefore, the defendant could not enjoy limits to the liability for damages.
Moral damages
Article 4 of the Interpretation of the Supreme People's Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts states that the court will accept, according to law, cases arising from any tortious act that causes permanent destruction or damage to a special memento of personality or significance brought to the court by the owner of the memento to claim emotional damages.
Considering that there was a close emotional link between the plaintiff and the golden retriever, the personality interests of human feelings and spiritual sustenance could not be ignored. Therefore, in order to comfort the owner's mental trauma and to show respect and humanistic care for life, even if the pet was not a "special memento", the owner could still claim for moral damages.
Based on these reasons, the court supported:
- the direct damages;
- the autopsy fees; and
- the expenses for:
- meals;
- communication;
- transport; and
- accommodation.
However, the court did not support the expenses for expiating the sins of the dead and the farewell ceremony because they were not necessary expenses. As for the moral damages, the court ordered the defendant to pay Rmb5,000 in moral damages to the plaintiff.
Domestic air carriers must be cautious when carrying living animals and fulfil their duty of care obligation, otherwise the limit of liability may be broken. Although some cases have not supported moral damages caused by a pet's death, this case is part of a trend in recent years that has seen Chinese courts increasingly supporting such damages.
The Interpretation of the Supreme People's Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts was revised in 2020 as follows:
People's Courts shall accept according to law cases brought by natural persons or their close relatives for claiming compensation for emotional damage due to the infringement upon their personal rights or interests or specific objects of personal significance.
Theoretically, personal rights are the opposite of property rights, and include personality rights and identity rights. Therefore, the change from "special memento of the personality of significance" to "personal rights or interests or specific objects of personal significance" expands the scope of the subject items of moral damages. Therefore, if a pet dies during a domestic air transport, the air carrier may be liable for the moral damages of the pet's owners.
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.