For this kind of infringement, the law of the place where the aircraft is registered, the law of the court, the law of the main business place or domicile of the airline, the law of the place where the passenger obtains the air ticket or the law of the place where the goods are consigned can be applied.
Because different countries have different legal provisions on this kind of infringement (that is, the third category), for example, the United States advocates that the carrier should be liable for compensation if it is at fault for passenger casualties in air transportation; Swiss air law stipulates that the carrier shall bear no-fault liability for personal injury or death of passengers. Therefore, in order to coordinate the differences of national laws, some international conventions have appeared in this field. There are three main ones, namely 1929 Warsaw Convention for the Unification of Certain Rules of International Air Transport (hereinafter referred to as Warsaw Convention), 1955 Hague Protocol for the Revision of Warsaw Convention (hereinafter referred to as The Hague Protocol) and 1929. In addition, there are 1966 Montreal Protocol and 197 1 Guatemala Protocol.
Among these conventions, the Warsaw Convention is the most basic and important one to regulate international air transport. Here, according to the Warsaw Convention, the carrier's liability for damages to passengers and luggage is briefly as follows:
1. Scope of application of Warsaw Convention
This is stipulated in Articles 1 and 2 of the Convention.
(1) is applicable to all international transportation where passengers, luggage or goods are transported by plane and the expenses are paid.
(2) "International transportation" means that the starting point and the ending point agreed in the transportation contract signed by both parties are in two contracting countries respectively; Or although the starting point and the ending point are in the same contracting state, there must be an agreed stopover in another contracting state or a non-contracting state; If the transportation handled by several consecutive air carriers is considered as a single commercial activity by the parties to the contract, the transportation shall not lose its international nature because one or more contracts are in the same country.
(3) The Warsaw Convention does not apply to certain international traffic.
Transport letters and parcels according to the International Postal Convention;
International air transport in which air transport enterprises conduct trial flights for opening official routes;
Extraordinary transportation under special circumstances, such as scientific investigation or emergency rescue transportation.
2. Liability of the carrier
Regarding the carrier's liability, Warsaw Convention stipulates three principles, namely, the principle of presumed fault liability, the principle of limited liability and the principle of exemption.
(1) Presumption of fault liability principle: that is, as long as the passenger's personal or property is damaged, the carrier is presumed to be at fault and liable for compensation. Only when the carrier can prove that he is not at fault, or that the loss is caused by the victim's own fault or self-help, can the carrier's liability be exempted or reduced. This principle is embodied in Articles 17, 18 and 19 of the Warsaw Convention. The details are as follows:
The carrier shall be responsible for the losses caused to passengers on board the aircraft or in the process of getting on or off the aircraft;
The carrier shall be responsible for the loss of any registered baggage or cargo that occurs in the course of air transportation;
The carrier shall be responsible for the losses caused by the delay of passengers, luggage or goods during air transportation.
Article 20 of the Warsaw Convention stipulates the circumstances under which the carrier's liability can be reduced or exempted, including the following three situations:
If the carrier can prove that it has taken all necessary measures to avoid losses, or it is impossible to take such measures, it may be exempted from liability;
The loss is caused by the fault of driving, aircraft operation or navigation, and the carrier has taken all necessary measures to avoid the loss and is irresponsible;
If the carrier proves that the loss was caused or contributed by the victim's fault, the court may also reduce or exempt the carrier's liability according to its own legal provisions (that is, applying the law of the forum).
This principle implemented by Warsaw Convention is the principle of presumption of fault liability. Only when the carrier proves that he is not at fault or that the loss is caused by the victim's own fault can he be exempted or relieved of his responsibility. This provision can also be called "the principle of inversion of burden of proof". Because in the general fault liability system, the victim's fault is proved by the victim. If the victim can't prove it, even if he is damaged, he can't get compensation. Who gives evidence has a great influence on tort litigation. The Warsaw Convention stipulates that the burden of proof shall be borne by the carrier, which is determined by the characteristics of air transport and is also to increase the carrier's responsibility. It is difficult and sometimes impossible for the victim to bear the burden of proof.
(2) the principle of limited liability
Warsaw Convention adopts the principle of inversion of burden of proof, which increases the carrier's liability, but also stipulates that the carrier only bears limited liability for the damage to passengers and luggage. Article 22 of the Warsaw Convention provides that:
When transporting passengers, the carrier's liability limit for each passenger is 654.38+0.25 million francs (changed to 250,000 francs in The Hague Protocol of 654.38+0.955). However, passengers can also set a higher liability limit according to the special agreement between them and the carrier;
When transporting registered luggage and goods, the carrier's liability for compensation for luggage and goods is limited to 250 francs per kilogram;
For the goods kept by the passengers themselves, the carrier's compensation for each passenger is limited to 5000 francs;
If the court finds that the loss is caused by the carrier's bad behavior, the carrier has no right to invoke the provisions of the convention on exempting or limiting the carrier's liability for compensation.
According to the spirit stipulated in the third paragraph of Article 1 of Warsaw Convention, even if a passenger suffers more than two damages in a single air transport process, the maximum amount of compensation he can get is still125,000 francs; When two or more claimants claim damages from the same passenger, the total amount claimed by each claimant shall not exceed 6.5438+250,000 francs.
(3) the principle of immunity and prohibition
In order to prevent the carrier from taking advantage of its special position to conclude exemption clauses with passengers, so that the provisions of the Warsaw Convention on the protection of passengers' interests become a dead letter, thus undermining the liability system of the Convention, the clauses in Articles 23 and 32 of the Warsaw Convention that attempt to exempt the carrier from liability or set any liability limit lower than that stipulated in the Convention will have no legal effect; If the parties to a contract of carriage violate the rules of this Convention, whether by choosing the applicable law or changing the provisions of jurisdiction, any clause in the contract of carriage and any special agreement before the damage occurs shall be null and void.
3. Litigation related to damages
Article 28 of the Warsaw Convention stipulates that passengers can (have the right) to choose jurisdiction in the following courts, that is, they can submit it to the court where the carrier is domiciled, the court where its head office is located, the court of destination, and the court where the institution that signed the contract is located within the territory of the Contracting State; The law of the court accepting the case shall apply to the proceedings; The limitation of action shall be put forward within two years from the date when the aircraft arrives at the destination or should arrive or when the transportation stops, otherwise the right of recourse will be lost.
The Warsaw Convention also stipulates that the parties may also go to the arbitration institution of the country where the court with jurisdiction is located for arbitration.
4. China aviation tort law applicable rules.
China's provisions on the application of aviation tort law are mainly embodied in the Civil Aviation Law. Article 189 of the law stipulates: "The law of the place where the tort is committed shall apply to the compensation for the damage caused by the civil aircraft to the third person on the ground. Compensation for damage caused to a third party by a civil aircraft on the high seas shall be governed by the law of the place where the court accepting the case is located. " There are no special provisions in the law on the tort that occurs in an aircraft and the tort that causes the death of passengers or damage to luggage and articles due to aircraft accidents.