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 no 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.