Domestic carriage – liability for passenger injury or deathGoverning laws
What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
The Tort Law of the People’s Republic of China; the General Rules of the Civil Law of the People’s Republic of China; the Civil Aviation Law of the People’s Republic of China; and the Order of Limits on the Limitation of Liability of Domestic Air Transport Carriers are the main laws regulating the liability for passenger injury or death occurring during domestic carriage.Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
There is strict liability. However, the air carrier may defend itself based on the passenger’s own fault. See the Civil Aviation Law, clause 124.Liability limits
Is there any limit of a carrier’s liability for personal injury or death?
The liability of an air carrier for each passenger’s personal injury or death in domestic aviation accidents will be up to 400,000 yuan. See clause 128 of Civil Aviation Law and clause 3 of Order of Limits on the Limitation of Liability of Domestic Air Transport CarriersMain defences
What are the main defences available to the air carrier?
There are various defences available to an air carrier, which could be cited on a case-by-case basis (ie, according to the actual situation):
- if the claim is not brought within the limitation period under the Civil Aviation Law, clause 135;
- if the carrier can prove that the damage was caused by the negligence or other wrongful act or omission of the person claiming;
- if the carrier can prove that the damage was caused by the passenger’s own health condition and the carrier has no fault in it; or
- if the carrier can prove that the damage was solely caused by negligence or other wrongful act or omission of a third party.
Is the air carrier’s liability for damages joint and several?
Yes. The contractual carrier and actual carrier will both be responsible for actual performance of the actual carrier (see the Tort Law of the People’s Republic of China).Rule for apportioning fault
What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?
China applies the principle of comparative negligence. Fault is apportioned depending on the extent of the passenger’s fault. The adequate compensation is then reduced by this percentage.
Tort law on negligence does not specifically require the victim to have a civil capability, nor does it apply different standards as far as minors are concerned.
The courts have discretion in assessing the ‘contribution’ to a certain extent.
See the Tort Law of the People’s Republic of China.Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
An action against an air carrier for injury or death should be filed within two years from the date the aircraft arrives at the destination, the planned date when the aircraft arrives at the destination, or the date when carriage agreement terminates (see the Civil Aviation Law, clause 135).
However, the General Rules of the Civil Law have just amended the general limitation period to three years. The clause mentioned may be amended accordingly.
For the moment, the two-year time limitation will still apply in the circumstances as it is a ‘special’ one, which will be respected and applied.