Introduction
Montreal Convention
China Civil Aviation Law
Analysis of relevant articles
Judicial practice in China
View of foreign courts and experts
Comment
According to article 33 of Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention), a court at the place of destination has jurisdiction over action for damages arising out of international air carriage. However, there is no clear definition of "destination" in the Montreal Convention. This article discusses how to understand the place of destination in an international round trip and the primary opinion in China and abroad.
The Montreal Convention defines "international carriage", "place of departure", "place of destination" and "stopping places" as follows.
Article 1:
2. For the purposes of this Convention, the expression "international carriage" means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.
Article 3:
1. In respect of carriage of passengers, an individual or collective document of carriage shall be delivered containing:
(a) an indication of the place of departure and destination;
(b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place.
As a state party to the Montreal Convention, China has incorporated a similar definition of "international air carriage" in the relevant articles of the Civil Aviation Law, as follows.
Article 107:
International air transport mentioned in this law refers to the contracted transport, with or without stopover or transshipment, whose place of departure or destination, or one of the agreed stopovers is not inside territories of PRC.
Article 111:
The passenger ticket is the primary evidence of the Conclusion of an air passenger transport contract and the conditions of the transport contract.
Article 110:
Contents of a passenger ticket should be specified by CAAC to include at least the following items:
(1) Places of departure and destination.
(2) When the places of departure and destination are both inside PRC territories, but with one or several stopovers outside its territories, the ticket should have at least one stopover specified.
Based on the relevant articles of the Montreal Convention and the China Civil Aviation Law concerning the definition of "international air carriage" and requirements for air tickets, any round trip in which the place of departure and the place of destination are within the territory of a single state party will be regarded as international carriage if there is one or more agreed stopping places within the territory of another state. Therefore, whether a trip amounts to international carriage depends on the whole air carriage contract, rather than the place of departure and the place of arrival of one leg of the whole air carriage contract.
Air passenger tickets may be prima facie evidence of a whole air carriage contract. In the whole air carriage contract, there is only one place of departure and one place of destination, probably with one or more agreed stopping places, and the whole contract may be performed by several air carriers together. In such a case, for a round trip, the place of departure and the place of destination are the same. Regardless of how much time is spent at one of the agreed stopping places or whether the agreed flight legs are carried out, the whole contract – as well as the place of departure and the place of destination specified therein – will remain the same.
In the case of a dispute, it may be argued that it is more appropriate to determine the place of destination based on the particular flight leg involved – that is, the flight during which an air accident happened. However, if such argument stands, every stopping place could be characterised as the place of departure or the place of destination. It would thus be meaningless to define "stopping place" in the Montreal Convention and the China Civil Aviation Law, and there would be no "international carriage" as defined in the Montreal Convention where the place of departure and the place of destination are within the territory of a single state party and one or more agreed stopping places are within the territory of another state.
Such understanding also conforms with judicial practice in China.
In one exemplary case, the court determined that, for a round trip, the place of departure and the place of destination were the same. The court found that the plaintiff had taken a flight operated by the defendant from Guangzhou, China to Bangkok, Thailand with a round-trip ticket. Therefore, although the dispute occurred during the flight leg from Guangzhou to Bangkok, the court determined that Bangkok was an agreed stopping place, while Guangzhou was the place of destination.
View of foreign courts and experts
Foreign courts and experts in the aviation law industry widely believe that the place of destination in a round trip means "the place at which the contractual carriage begins and the place at which the contractual carriage ends". This means that the place of destination indicated in the contract of carriage and on the passenger ticket, in particular, shall be the one to determine the destination of the carriage. The intention of the parties is determinative.
Chinese courts are likely to align with the foreign courts on the understanding of the place of destination of an international round trip under the Montreal Convention.
The destination of any international round trip shall be decided on the place of destination indicated in the contemplated air carriage contract. Such destination shall be one and only, regardless of whether there are multiple stopping places agreed between the parties. For a round trip, the place of departure and the place of destination are the same.
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.