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Applicable treaties

Major air law treaties

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

The People’s Republic of China (the jurisdictions of the Hong Kong Special Administrative Region and the Macao Special Administrative Region are excluded) has ratified the following air law treaties:

  • Montreal Convention 1999 (entry into force July 2005);
  • Tokyo Convention 1963 (entry into force 29 February 1979);
  • Hague Protocol 1955 (entry into force 8 November 1975); and
  • Warsaw Convention 1929 (entry into force 18 November 1958).

These treaties are directly implemented in China and the provisions of the treaties should prevail if there are any conflicts between them and the corresponding provisions of domestic laws and regulations.

International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Yes. In particular, when applying the treaties, the courts may apply certain provisions of domestic laws and regulations as supplementary when they think necessary (see Su Jingjian, Zhang Chenxi v Air France (2015) and Lu Hong v United Airlines (2001)).

Although, strictly speaking, there is not a precedent system in China, the courts’ attitudes are reflected in binding judgments.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

No. In Su Jingjian, Zhang Chenxi v Air France (2015), the court not only applied the Montreal Convention, but also applied the Tort Law and the corresponding Judicial Interpretation (issued by the Supreme Court of China) when calculating the applicable compensation payments.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Chinese courts take a variety of factors into account when determining whether ground handling agents and other service providers should be considered as ‘carriers’, including the relationship between the parties concerned, the clauses contained in air tickets or contracts, and other factors.

When determining whether carriage is successive carriage, the court considers the intention of parties, the process of the flights, the air tickets and the actual situation.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

Theoretically speaking, the Chinese courts admit that, even when the passenger injury or death occurs on the aircraft or during any operation of embarking or disembarking, the carrier will not assume liabilities if:

  • it was not related to flight; and
  • it was not associated with the operation of the aircraft and could not be attributed to any unusual, accidental or unforeseen accidents.

However, in practice, it appears that the Chinese courts have been applying an approach more favourable to passengers (see Su Jingjian, Zhang Chenxi v Air France (2015)). In this case, the court directly held that the carriers assume liabilities as long as it occurs ‘on the plane’ and ‘in the course of embarking or disembarking’ and the carrier was negligent when taking emergency measures.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

Chinese courts appear to have taken this clause as a ‘strict liability clause’. In other words, for the purpose of exempting themselves from liabilities, the carrier will be required to provide evidence to prove that ‘no connection’ exists between the injury or death and them. No doubt it is extremely difficult for the carrier to meet such a standard of burden of proof.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

It is not a compulsory requirement for the carrier but the court will consider formal applications filed by injured passengers or the family members of deceased passengers in the circumstances.

According to the PRC Civil Procedure Law, upon the request of a party, a people’s court may make a ruling for preliminary execution in the following cases:

  • those involving claims for overdue alimony, maintenance, child support, pensions for the disabled or the family of the deceased, or medical expenses;
  • those involving claims for remuneration for labour; and
  • those involving urgent circumstances that require preliminary execution.

Under Chinese law, preliminary execution here is a type of advance compensation payment, and injured passengers or the family members of deceased passengers could attempt to file applications in this regard by relying on one of the reasons set out above.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

In China, these terms are interpreted as below:

  • Domicile of the carrier: the air carrier’s domicile will be the place where its principal place of business is located. Where an air carrier does need to be registered according to the law, it shall register the place where its principal place of business is located as its domicile. See article 63 of the General Rules of the Civil Law of the People’s Republic of China.
  • Principal place of business of the carrier: the Chinese courts generally regard it as where the management or economic activities mainly take place.
  • Place of business through which the contract has been made: the court may consider several factors in the circumstances, and the place may be where the ticket was issued, the contract was made or the passenger received the ticket.
  • Place of destination: it shall be the place of destination as printed on the ticket.
  • Forum non conveniens doctrine: Chinese courts admit the principle of forum non conveniens doctrine. However, there is little chance to challenge the jurisdiction of a court by relying on this doctrine.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

This is a controversial issue and the prevailing view is that it is subject to tolling. In other words, it is regarded as a ‘normal’ prescription period that can be suspended under certain circumstances (see Su Jingjian, Zhang Chenxi v Air France (2015)).

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Contractual carrier and actual carrier will both be responsible for actual performance in accordance with the Montreal Convention, articles 40 and 41.

Domestic carriage – liability for passenger injury or death

Governing 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 Carriers

Main 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.

Damages

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.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

The procedures applicable include:

  • negotiation for compensation (according to each airline’s own regulation);
  • litigation; and
  • arbitration (if there is an arbitration clause).

Time limits

What time limits apply?

  • If it is a dispute in relation to air transports or liability for ground damage, the two-year time limitation will apply (see the Civil Aviation Law, clause 135 and clause 171). However, as mentioned above, the General Rules of the Civil Law has just amended the general limitation of period to three years. The clause mentioned may be amended accordingly.
  • For other types of disputes, the ‘general’ three-year time limitation will apply (see the General Rules of the Civil Law, clause 188).

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

Chapter 12 of the Civil Aviation Law governs air carrier liability for injury or damage caused to persons on the ground.

Nature and conditions of liability

What is the nature of, and conditions for, an air carrier’s liability for ground damage?

There is strict liability, but exceptions include:

  • where the damage is only caused by the passage of the aircraft in line with the relevant regulations; and
  • where the damage is caused by the fault of the victim or his or her servant or agent (see the Civil Aviation Law, clause 157).

Liability limits

Is there any limit of carriers’ liability for ground damage?

No, but the total amount will be counted according to the Tort Law regulations, which have a personal injury compensation standard.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

There are several defences, including:

  • where the damage is only caused by the passage of the aircraft in line with the relevant regulations;
  • the damage is caused by the victim, his or her servant or his or her agent;
  • the aircraft is used without the consent of the air carrier, and the air carrier has evidence to prove that he or she has taken due care to prevent such situation;
  • the aircraft is expropriated by the country;
  • the damage is a direct consequence of armed conflict or riots; and
  • the time limitation has been passed.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

The laws applied in this field mainly include the Civil Aviation Law and the Tort Law.

In general, passengers’ irregularities and terrorist events are excuses for air carriers (see the Civil Aviation Law, clause 127, clause 160 and clause 161).

Nature and conditions of liability

What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?

The air carrier will be excused from the relevant liability if the damage is caused by terrorist events (see the Civil Aviation Law, clause 160).

The air carrier will hold comparative negligence liability if the damage is caused by an unruly passenger. An air carrier will be exempted from the liability for damage if it proves that the damage was caused solely by the fault of the passenger who suffers the damage or of the latter’s servants or agents. If the air carrier liable proves that the damage was contributed to by the fault of the person who suffers the damage, or of his or her servants or agents, the compensation will be reduced to the extent to which such fault contributed to the damage. Nevertheless, there will be no such exemption or reduction if, in the case of the fault of a servant or agent, the passenger who suffers the damage proves that his or her servant or agent was acting outside the scope of his or her authority (see the Civil Aviation Law, clause 161).

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

As mentioned above, the air carrier will be excused from the relevant liability if the damage is caused by terrorist events.

Even if the damage is caused by an unruly passenger, the limit of liability will be the same as a normal passenger, which is 400,000 yuan for each passenger’s personal injury or death.

Main defences

What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?

As mentioned above, the air carrier will be exempted from the relevant liabilities if the damage is caused by terrorist events.

The defences for an unruly passenger include:

  • if the claim is not brought within the limitation period;
  • if the carrier can prove that the damage was caused solely or partly by the fault of the passenger who suffers the damage;
  • if the carrier can prove that the damage was caused solely or partly by the fault of the passenger’s servants or agents; and
  • if the carrier can prove that the damage was solely owing to the negligence or other wrongful act or omission of a third party.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

The relevant regulations include:

  • Civil Aviation Law;
  • Regulations on Normal Flight Management;
  • Administrative Measures for Air Transport for Disabled Persons;
  • Administrative Measures for Consumers’ Complaints in Public Air Transport Services;
  • Regulations on Normal Flight Management;
  • Civil Aviation Safety Inspection Rules;
  • ‘Disability’ Measures for the Administration of Air Traffic;
  • Regulations on the Administration of Civil Airports;
  • Implementation Measures for Information Forecasting of International Passengers on Passengers;
  • Safety Rules for Public Air Passenger Transport Flight;
  • Work Procedures for Foreign Airlines Flight Schedules;
  • Interim Measures for the Administration of Civil Aviation Electronic Tickets of China; and
  • Interim Measures for the Administration of Flight Schedules of Civil Aviation.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

There is no specific law applying to the liability of the government entities that provide services to the air carrier. Thus, this issue will be covered by the Tort Law.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

In general, it is fault-based. However, it is rare for government to take such liability because even though the vast majority of Chinese airports and airlines are state-owned assets, state-owned assets are also civil entities and cannot be equated with government departments. Therefore, the compensation of airports or airlines will still be deemed as a civil legal relationship between commercial entities in the market.

Liability limits

Are there any limitations to seeking recovery from the government entity?

The government may exempt itself from taking the liability if:

  • the result of the damage is owing to the personal actions of government staff that are not related to the official business; or
  • the damage is the passenger’s own fault.

And also, there is a detailed formula for the calculation of damage in this regard.

See the State Compensation Law of the People’s Republic of China, clauses 5 and 34.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

Prosecutors rarely investigate on criminal liabilities of an air carrier, although, theoretically speaking, this possibility cannot be excluded. In other words, if there is enough evidence to show the probable cause of individual criminal action (since there is no suitable unit crime for aviation liability), the prosecutors will start to investigate into the issues concerned.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

The effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives includes:

  • Suspension or termination of civil proceedings. The Chinese courts follow the principle of ‘criminal first: if the result of a civil trial is affected by the criminal judgment of the same case, the court will suspend or terminate the civil procedure, waiting for the criminal procedure to be completed, and then continue the civil proceedings.
  • Civil proceedings may be ‘absorbed’ into criminal proceedings and become criminal incidental civil suits. However, it is worth noting that there will be changes to the normal civil proceedings, where:
    • there are no additional court fees for the procedure;
    • mental damage compensation is unavailable;
    • there will be a specific stage for filing a civil lawsuit;
    • there is a different procedures for application; or
    • there is a different compensation method.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

No. The criminal incidental civil action can only be filed against the defendant, but the possible defendant here can only be individuals (the reason has been mentioned above). Therefore, the passenger cannot directly claim compensation from the air carrier through the criminal proceedings.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

Any provision tending to relieve the carrier of the liability prescribed by article 130 of Civil Aviation Law or to fix a lower limit than that which is laid down in article 53 of the Contract Law will be null and void, but the nullity of any such provision will not involve the nullity of the whole contract of transport by air.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

There are different limitation caps on damage under different situations. Chinese courts do not support punitive damages.

International flight

  • If an international treaty is applied in accordance with the jurisdiction, the limitation caps on damage in the treaty shall apply.
  • If domestic law is applied in accordance with the jurisdiction, the liability of the carrier for each passenger is limited to 16,600 special drawing rights. Nevertheless, the passenger may agree with the carrier in writing to a limit of liability higher than that prescribed by this sub-paragraph. See the Civil Aviation Law, clause 129.

Domestic flight

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 3 of the Order of Limits on the Limitation of Liability of Domestic Air Transport Carriers

The beneficiary is the victim who directly suffers from personal injury because of the tort. See the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Cases of Compensation for Personal Injury, clause 1.

What damages are recoverable for the death of a passenger?

If the passenger dies, the damages that can be claimed include:

  • funeral expenses, living expenses of the dependents, death compensation fees and other reasonable expenses such as transportation expenses, accommodation expenses and lost time for the relatives of the victims to handle funeral matters;
  • if there was any pre-treatment, the claim should include medical expenses, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition fees; and
  • if the close relatives of the deceased suffer mental damage, they may also request compensation from the air carrier for mental damage in accordance with the Interpretation of the Supreme People’s Court on Several Issues Concerning the Liability for Compensation for Torture of Civil Tort.

Chinese courts do not support punitive damages. The beneficiaries include:

  • victims who directly suffer from personal injury due to the tort;
  • a person in need of maintenance and upbringing to which the victim is obligated in accordance with law; and
  • the immediate family of the deceased victim.

See the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Cases of Compensation for Personal Injury, clause 1.

The court will not appoint a representative to seek recovery or pursue an action against the air carrier.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

The Civil Aviation Administration of China and the Regional Administration are responsible for investigating aviation accidents.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

The accident reports may be available to the public, but flight data recorder information of cockpit voice recordings should not be disclosed to the public, unless for the purpose of investigation. Also, the irrelevant data or recording should not be attached to the reports disclosed. See the Orders for Civil Aircraft Accident and Flight Accident Investigation, clause 33.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Yes. Clause 36 of the Orders for Civil Aircraft Flight Accident Emergency Response and Family Assistance.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Yes, The operator of a civil aircraft will be covered by insurance against liability for third parties on the surface or obtain a corresponding guarantee. See the Civil Aviation Law, clause 166

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

There is no specific court structure for aviation liability compared with other civil claims. Generally, the party sues in the local court where the accident occurred, where the aircraft first landed or in the defendant’s domicile. If the party is dissatisfied with the first-instance judgment of the local people’s court, he or she has the right to file an appeal to the second-instance people’s court within 15 days from the date of delivery of the judgment. The second instance people’s court will form a collegiate bench for the appeal case, and the second-instance judgment will be final.

If the party is dissatisfied with the second-instance judgment, the retrial may be applied in accordance with the re-examination procedure, but the court may not accept the re-examination request.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

The evidence discovery/disclosure system is included in the evidence exchange procedure. The purpose is to clarify the focus of the dispute by requiring parties to exchange evidence, and to prevent evidence raids. Thus, it is a part of the trial process. See th Civil Procedure Law, clause 133.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

Yes, there are rules regarding the preservation of evidence. An order of preservation of evidence may be obtained from a court if there is a high possibility that the evidence would be destroyed or it would be difficult to obtain afterwards. There are several ways to preserve the relevant evidence, such as sealing up, detention, taking photographs, making sound recordings or visual recordings, making reproductions, conduction authentication, forensic inspection and drawing up written statements.

There are also rules regarding the spoliation of evidence. Where evidence exists demonstrating that one party is in possession of evidence but refuses to provide it without good cause and the other party claims that such evidence is unfavourable to the party in possession of the evidence, an inference that the other party’s claim is valid may be drawn. See the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings, clause 75.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

Litigation costs

Yes. Litigation costs will be borne by the losing party.

Attorneys’ fees

It depends. The losing party will bear the other party’s attorneys’ fees only when the fees are contractually agreed upon in accordance with the contract. If there is no contractual agreement, they will bear their own legal fees.

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

Pre-judgment interest

The prevailing view is that such interest compensation will not be granted, because the specific amount cannot be confirmed until the judgment takes effect in tort.

Post-judgment interest

Yes, if the defendant fails to perform the payment of money obligations in accordance with the period specified in the judgment, ruling and other legal documents, and the interest on the debt during the period of delay in performance shall be doubled.

The calculation formula for post-judgment interest is: post-judgment interest equals the debtor’s outstanding debt multiplied by 1.75 per 10,000 multiplied by the days delayed during the performance period.

See clause 253 of the PRC Civil Procedure Law and the corresponding Judicial Interpretations issued by the Supreme Court.

Settlements

Is court approval required for settlements?

No. See the Civil Procedure Law, clause 50.

In practice, there are basically two approaches of concluding the corresponding litigation proceedings after settlements are reached. One approach is for the claimant to withdraw the lawsuit from the court after the settlement is reached. The other approach is for the claimant to file an application before the court and request the court to issue a Civil Mediation Order. This approach is more popular as the claimant could later commence enforcement proceedings based on the Civil Mediation Order.

What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?

If multiple parties share joint liability, the victim may choose to settle with either party, but the relief of any of them will be effective for all other parties.

If multiple parties hold separate liability, the victim may choose to settle with any party, and there will be no effect on the right to seek contribution or indemnity from another person or entity.

Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

No.

Updates and Trends

Updates & Trends

Updates and trends

Although the evidence preservation system has not changed from a legislative perspective, in practice, the government is encouraging more and more people to choose evidence preservation procedures to improve the accuracy of the judgment. Therefore, we can estimate that there will be more specific regulations for the evidence preservation procedure, and more professional institutions will be set up to improve China’s evidence preservation system (see question 44).

Although the General Rules of the Civil Law have just amended the general limitation period to three years, the limitation of period of aviation liability remains two years, according to the Civil Aviation Law, clause 135. According to the latest legislation, the rule remains unchanged. However, we expect that the trend will be to amend the general limitation period to three years (see question 17).