Lu Hongsu USA United Airlines

(Law)

Core tips:

   The law applicable to foreign civil legal relationship of order for international treaties, domestic law, international convention. China and American are international treaties in 1929 "Warsaw Convention" and 1955 "Hague Protocol" members, should first apply the relevant provisions of "Warsaw Convention" and the "Hague Protocol". According to the parties agreed, where the departure or the destination, respectively in the two parties within the country, in accordance with "Warsaw Convention" sense of "international transportation," agreed basis is to contain the shipping documents shall prevail.

(a) first

1 judgments Name: Shanghai Jingan District people's Court (2000) static issued Spain in the early Republican word no. 1639th.

2 cases: international air passenger transportation damage compensation dispute.

The 3 parties

Plaintiff: continental red, female, born in July 1, 1953, Han nationality, address in Anhui province Hefei city of Hefei Yu Lu Tang Bridge Village 403 building 6 room.

Defendant: domicile America United Airlines, American: Chicago (11555 W.T OUHY.ARE.GHICAGO IL.60666 U.S.A), Shanghai office address: Shanghai city Nanjing West Road Shanghai center 1376 room 204.

Legal representative: James Edward. Godwin (JAMES EDWARD GOODWIN).

The 4 trial: a review.

5 judicial organs and the judicial organization

Judicial organs: Shanghai Jingan District people's court.

The collegial panel: judge: Xu Beiwa; judge: Chen Xiaojie, Tan Yongwei.

Time: November 26, 2001 6.

(two) the plea that

The 1 plaintiffs: the plaintiff in May 12, 1998 aboard the flight, stop in Tokyo's Narita Airport, the aircraft left engine caught fire, the plaintiff was injured in the evacuation process, was sent to rescue Japan Narita Red Cross Hospital, the radiography showed: the right ankle of inside and outside, after three ankle fracture and displacement, but the Narita the Red Cross hospital without special treatment. May 14th, the plaintiff in the Hongkong hospital for examination, found the injured limb local inflammation, no operation immediately, with the consent of the consent, the plaintiff to come back in May 16th in Anhui Provincial Hospital treatment, successively in two operation treatment in May 27, 1998, December 10th. December 22, 1998, the plaintiff was discharged, but the right lower limb has been swelling and walking inconvenience, the MRT scan showed right knee meniscus injury. By the Anhui Provincial Higher People's Court of forensic appraisal center appraisal, the plaintiff loses the right ankle joint function part of the loss. Permanent disability and traumatic arthritis; knee meniscus injury, right hip flexor tendon injury of SEC, the right peroneal nerve injury, consistent with acute contusion caused by sliding torsion, we left the functional disorder, the appropriate time to "meniscectomy", operation effect is difficult to affirm. The plaintiff argues that the defendant caused the plaintiff disability and economic losses' after several fruitless negotiations with the defendant, then according to (Convention for the unification of certain rules for international carriage by air) (hereinafter referred to as the "Warsaw Convention"), "revised in October 12, 1929 in Warsaw signed the unification of certain rules for international carriage by air Protocol" (hereinafter referred to as the "Hague Protocol") regulation, based on the "Montreal Protocol" under the 75 000 dollar limits of liability, demand that the defendant to compensate the plaintiff disability allowance and life nursing fees of $75 000. In the lawsuit, the plaintiff modify claims, according to the requirements of "the International Air Transport Association on passenger liability carriers Protocol", "on the implementation of the international air transport association between carrier Measures Agreement" (two agreement are collectively referred to as the "agreement" provisions in Kuala Lumpur) 100 000 special drawing rights ($132099) limit liability compensation, order the defendant to compensate the loss fees, nursing fees, the spirit of damages and attorneys fees amounted to $132 099.

The 2 defendant argued: the plaintiff fails due to the wing of the aircraft engine, unfortunately injured in the evacuation of the aircraft, causing the right leg ankle fracture fact no objection. As the party responsible for the accident, actively cooperate with the treatment, has to pay medical costs 86 748.10 yuan, but the plaintiff in his right knee meniscus injury in the first half of the year after the accident, it cannot prove that are associated with the air accident. For the identification of the book 'the plaintiff provided by the Anhui Provincial Higher People's Court of judicial identification center of the defendant that the identification of the identification of the non court commissioned, I request the damage situation of our hospital to the plaintiff to judicial identification. For the case law, the defendant that the "agreement" is only the Kuala Lumpur as internal agreement signed between the members of the International Air Transport Association of the carrier, the plaintiff as a passenger, not the agreement signing agent, and the contents of the agreement are not included in the passenger transport contract. At the same time, the protocol does not the international practice, nor international treaty, according to the international treaty, quoted China legal provisions of the domestic law, international order, the plaintiff shall not be entitled to refer to "Kuala Lumpur agreement" to lodge a claim against the defendant, the provisions of this case should be applied "Warsaw Convention" or "the people's Republic of China Civil Aviation Law". The standard of compensation, the defendant that the plaintiff will "100 000 Special Drawing Rights Agreement" in the understanding of Kuala Lumpur as compensation liability of passengers is wrong, 100 000 SDR is a carrier of objective responsibility system and whether to exercise the amount of liability limits, identification of the case should be made to the people Shanghai court commissioned injury of judicial appraisal committee of experts identified by the disability standard as the basis, within the limits prescribed by law, to reasonable compensation for the plaintiff.

(three) the facts and evidence

Shanghai Jingan District people's court by the open court found: the plaintiff in May 12, 1998 aboard the flight UA801 from Hawaii to Hongkong America by Japan, the machine takes off at Tokyo's Narita Airport, the plane left the engine failure, the plaintiff in the emergency evacuation process in the injured, was rushed to the rescue Narita Red Cross Hospital, the X-ray diagnosis of fracture for the right ankle. In May 14th, the examination in Hongkong Elizabeth hospital, check the conclusion is right ankle lateral local inflammation, no operation immediately. The consent of the consent, in May 16th admitted to Anhui Provincial Hospital for treatment, the hospital diagnosed as: the right internal, external, after ankle fracture and comminuted and displaced. In May 27th, the Institute was open reduction plus cancellous screws and Kirschner internal fixation operation for the plaintiff, postoperative plaster fixation of limb. July 30th, the plaintiff was discharged. November 25th. The plaintiff was right hip joint activities is limited, the right ankle is still mild swelling again to the Anhui Provincial Hospital hospital treatment, in December 10th, the Institute for the plaintiff to right ankle fixation screw removal. December 22, 1998, the plaintiff was discharged, rest until 1999 3 at the end of. During the wage income by the original monthly RMB 12 400 yuan to RMB 255 yuan, the actual monthly decrease RMB 1 145 yuan. During the injured in hospital, employ two workers care after discharge, to work, to hire a nursing care. The plaintiff was injured, the defendant to the plaintiff, the defendant said the accident responsibility lies, and 4 points to the Anhui Provincial Hospital remittance RMB 91 631.50 yuan in May 20, 1998, June 17, 1998, December 7, 1998, January 6, 1999, take the 2 operation medical costs of RMB 86 748.10 yuan, the defendant has to settle balance with the Anhui Provincial Hospital. In September 2, 1999, the Anhui Provincial Higher People's Court of judicial identification center to accept commissioned by the plaintiff, the plaintiff was injured by judicial identification, appraisal conclusion for: the right ankle inside and outside, after three ankle fractures (comminuted), consistent with acute contusion caused by sliding torsion, we left right ankle joint function part of the loss, cause lifelong disability and traumatic arthritis; the loss of meniscus in his right knee, right hip flexor and extensor tendon injury, the right peroneal nerve injury, consistent with acute contusion caused by sliding torsion, we left the functional disorder, must exercise and physical treatment of the corresponding. To be an appropriate time to "meniscectomy" and "nerve, tendon release" and other symptomatic treatment, but the operation effect difficult to determine. After that, the compensation representations on many occasions, but eventually failed to reach an agreement, the plaintiff sued to the court, the defendant in accordance with the requirements of "agreement" provisions of the Kuala Lumpur 100 000 special drawing rights ($132099) shall bear the liability for compensation, the defendant was ordered to take care of 14300 yuan (including nursing staff travel costs RMB 7 800 yuan) loss of 105877.50 yuan, the plaintiff, the plaintiff can not be competent for the job lost pay RMB 153 750 yuan, the plaintiff can not served as general manager of the loss of 713700 yuan, spiritual comfort fee 50000 yuan, at present to 70 year old care treatment fee of RMB 138 000 yuan, lawyer fee of RMB 66299 yuan, the lawyer expenses of RMB 30 000 element, and ordered the defendant to bear the cost of litigation. In the trial, the defendant to the plaintiff's expert conclusion as entrusted by the Anhui Provincial Higher People's Court of judicial identification center are different, and the re examination, the court commissioned Shanghai personal injury of judicial appraisal committee of experts on the right lower extremity injury and disability level don't judicial identification. Appraisal conclusion for: (1) the plaintiff with subluxation of joint fracture of right ankle three ankle induced air accident, the right ankle joint activity limitation, loss of more than 50%, long distance walking limitation, refer to the "injured in road traffic accident assessment" 4.9.F and appendix A8 requirements, comprehensive evaluation is eight degree disability; (2) according to the identified people's injury, can give appropriate nutritional care for 3 months, 3 months; (3) identified people right knee McNamara levy and hyperextension tests were all negative, MRI film censorship showed no signs of meniscal tears, only degeneration, no direct causal relationship with the aviation accident.

The facts mentioned above have the following evidence:

1 the plaintiff in the UA801 airline ticket, to prove the existence of the contractual relationship in international air passenger transportation between the original, the defendant.

A group of evidence 2 plaintiffs medical treatment: (1) Japan's Narita hospital records; (2) Hongkong Elizabeth hospital report; (3) the Anhui Provincial Hospital medical report; (4) the plaintiff in Anhui Provincial Hospital in July 30, 1998 December 22, 1998 the first discharge summary and the second discharge summaries, the evidence that the plaintiff was injured the condition of treatment.

Anhui Provincial Hospital in 3 Certificate, to prove that the defendant the plaintiff injury to pay 90000 yuan to the hospital, the medical expenses.

Conclusion the 4 Anhui Provincial Higher People's Court of judicial identification center made in September 2, 1999, to prove that the defendant's damage caused by the injury severity.

A group of correspondence between 5 of the original, the defendant to prove the original, seventeen copies, the defendant had injured plaintiffs claim made after many representations, but the two sides did not reach an agreement.

The 6 plaintiffs lawyer one copy of the contract, to prove that the plaintiff to pay legal fees 66299 yuan, 30000 yuan to pay the lawyer travel.

The 7 defendant telegraphic transfer certificate in four copies, two copies of Anhui Provincial Hospital medical fee receipt to prove that the defendant to the plaintiff, payment of medical fee of RMB 86748.10 yuan.

Committee of experts on the injury forensic identification of the conclusion of the 8 Shanghai city people, prove that there is no direct causal relation between meniscus and the aviation accident.

(four) the decision reason

Shanghai Jingan District people's court according to the facts and evidence that the plaintiff: Airlines flight ticket and take the defendant, and the establishment of a contractual relationship, international air passenger transport as the carrier, the defendant should be timely, secure the passenger service to the destination, this is the carrier can not shirk its obligations, the accused's flight at stop fault occurrence, caused the plaintiff in an emergency evacuation process right ankle injuries, brought a lot of inconvenience to the life, also make the plaintiff's work is affected, the accident is the responsibility of the defendant, the defendant should bear corresponding responsibility for compensation. The plaintiff was a defendant to flight disabled the claims, the defendant, the responsibility and the right infringement responsibility of breach of contract. The aggrieved party is entitled to choose to bear the liability for breach of contract or tort shall bear the liability for infringement of rights, the plaintiff although asked the defendant to bear contractual liability, but the proceedings, the plaintiff and the defendant bear repeated requests for spiritual comfort fee of RMB 50 000 yuan. From the above claims, the defendant to the plaintiff responsibility request choice is uncertain. According to the judicial practice of our country, the concurrence of liability limits, unless the parties expressly choose, when the breach caused the victim casualties and the mental damage, although there was a contractual relationship between the parties, should as far as possible according to the tort liability to handle. Because the contract responsibility is mainly to the property damage compensation, not including personal injury and mental damage compensation, and not to the victim caused by personal injury, mental damage relief, so only through the tort damages to provide relief to the victim. Therefore, this case in accordance with the tort liability, is more conducive to the protection of the victim's legitimate rights and interests, protection of the rights and interests of the victim also more fully. Now the defendant to the monthly nursing fee of RMB 500 yuan no objection, the court recognized; the nursing staff's monthly food costs 600 yuan, 500 yuan fee for nursing standard, include the meals and transportation fees, and accord with the general standard of the local workers, field in Anhui Province, it is not to pay other expenses. During the operation to employ 2 people in hospital nursing, nursing a person hired after discharge, no improper. On the plaintiff's claim of nursing staff transportation fee of RMB 7 800 yuan for, because of the lack of facts and legal basis, and the appeal does not accord with the general requirements of the market, so the court shall not support. On the plaintiff's loss of RMB 973 327.50 yuan for, be treated for a rest and not work since 1998 May the injured to 1999 March the period, wage loss does exist, and the plaintiff also provides information about wages proof and tax certificate. So the plaintiff in this stage of lost wages 105 877.50 yuan litigation request, the court shall support; 713750 yuan wages 153 750 yuan wage losses to the plaintiff in 1999 March to 2001 April was unable to get to work, job responsibilities and cause and not as general manager and cause, because the plaintiff the rest necessary after treatment, since at the end of 1999 3 has begun to work, the degree of disability and the plaintiff and incompetent no direct causal relationship between general manager, 713.750 yuan wages part of the loss of the plaintiff can not normal work, job responsibilities caused by 53 750 element wage loss and not as general manager and cause, the court shall not support, but taking into account the disability, to the future work and life has brought the inconvenience and difficulties, so the defendant shall pay the plaintiff disability compensation fee according to the salary standard Of RMB 186 000 yuan. The defendant's act brings physical and mental suffering to the plaintiff, the plaintiff, to demand compensation for mental solatium RMB 50 000 yuan request, the court shall support. The plaintiff requested that in future 20 years of care and treatment fee of RMB 138 000 yuan a lack of factual basis, legal basis, the court shall not support. On the plaintiff's lawyer and lawyer fees of 66299 yuan 30 000 yuan RMB for travel, because the plaintiff, the defendant in the ticket on the back of the clauses of the contract amount of $75 000 contains the lawyer fees, so according to the contract, the original tell please attorney fees to support, but the specific amount should be according to the hospital please support the original told the amount calculated in accordance with the relevant provisions, therefore, the defendant should bear the plaintiff attorney fees 16 595.10 yuan RMB, lawyer expenses 11802.50 yuan. The in-hospital medical expenses of RMB 86 748.10 yuan, the defendant has been paid, the case is no longer treatment.

(five) the decision text

Shanghai Jingan District people's court according to the "general rule of the civil law" 142nd, "" Convention on the unification of certain rules of international air transport seventeenth first, the first strip, "Protocol" revised convention signed in Warsaw in October 12, 1929 unified international air transport of certain rules of article third, the provisions of article eleventh, the decision as follows:

10 days to compensate the plaintiff Lu Hong nursing fee of RMB 7000 yuan, delay costs RMB 105 877.50 yuan, disability compensation fee of RMB 186000 yuan, mental solatium 50000 yuan 1 defendants USA united airlines shall come into effect from the date of judgement.

10 days to compensate the plaintiff Lu Hong lawyer agency fee of RMB 16 595.10 yuan, lawyer expenses 11802.50 yuan 2 defendants American united airlines shall come into effect from the date of judgement.

In the case of identification fee of RMB 11243 yuan, the actual execution fee of RMB 6 000 yuan, shall be borne by the defendant America United Airlines (the defendant USA United Airlines has been paid).

The case acceptance fee of 15492.11 yuan, 10161.33 yuan, the defendant the plaintiff Lu Hong bear America United Airlines for 5330.78 yuan.

(six) Notice

The focus of the dispute is the applicable law.

According to the "general rule of the civil law" 142nd article second, third paragraph: "the international treaties concluded or acceded to by the people's Republic of China Civil Law of the people's Republic of China are different from the provisions of the international treaty shall apply, except, but the people's Republic of China has declared reservation clause. The international treaty law of the Peoples Republic of China and the people's Republic of China has concluded or acceded to the absence of such provisions, can be applied to international practice." Visible, the law applicable to foreign civil legal relationship as the order of international treaties, domestic law, international convention. As an international treaty in 1929 "Warsaw Convention" and 1955 "Hague Protocol", China and USA are members, so the case should be the relevant provisions of the first Warsaw Convention "for" and "Hague Protocol". According to the parties agreed, where the departure or the destination, respectively in the two parties within the country, in accordance with "Warsaw Convention" sense of "international transportation", and agreed to transport document is based on the State shall prevail.

"Warsaw Convention" the provisions of article twenty-fourth: where to apply the eighteenth and nineteenth cases, litigation for any damage, regardless of its according to how, only in accordance with the provisions of this Convention the conditions and limitations of the proposed. Where to apply the seventeenth cases, the provisions of the preceding paragraph applies, but this does not hinder for who is to determine the right to sue people and what they have their problems right etc.. Visible, every belongs to the range of damage compensation, can only apply the "Warsaw Convention".

At the same time, "the agreement" between Kuala Lumpur as members of the International Air Transport Association carrier agreement, although effective, but because in this case the parties did not agree to apply, so no binding force on the case. From the actual situation of the case, the parties have agreed on the law applicable to special. The plaintiff a plane ticket back clause stated "the scope of responsibility of international passenger notice" clear "Warsaw Convention" the provisions applicable to the entire journey. Special agreement the ticket is in accordance with relevant provisions of the Warsaw Convention ".". Therefore, in the case of the application of law, should apply the "relevant provisions of the Warsaw Convention" and the revised.