Lu Hong v. United Airlines

陆红诉美国联合航空公司国际航空旅客运输损害赔偿纠纷案

Lu Hong v. United Airlines

(Dispute over Compensation for International Air Passenger Transportation Damages)

Plaintiff: Lu Hong, female, 48, domiciled at Heyu Road, Hefei City, Anhui Province.

Authorized Agents: Duan Aiqun and Chen Jun, attorneys-at-law of Shanghai Hailyare & Partners.

Defendant: United Airlines, situated at 11555 W. Touhy. Are. Chicago Il. 60666 U.S.A.

Shanghai Office of United Airlines: Nanjing West Road, Shanghai Municipality.

Legal Representative: James Edward Goodwin.

Authorized Agents: Jin Yulai and Shan Shaofang, attorneys-at-law of Shanghai Kai-Rong Law Firm.

Lu Hong instituted a lawsuit before the People's Court of Jing'an District of Shanghai Municipality against United Airlines for the dispute over compensation for international air passenger transportation damages.

Lu Hong complained that: she was injured when she took the airliner operated by United Airlines, and even after surgical operation, there was still functional disability. Now she must do corresponding functional exercises and receive physical treatment, and would be subject to another surgical operation at proper time, and it was hard to foresee the treatment effect for the time being. Her injury and serious economic losses were completely caused by United Airlines. After several mediations with United Airlines for the compensation matter, both parties did not reach the unanimity. Therefore, Lu Hong pleaded to order United Airlines to compensate 75,000 US Dollars of disability subsidies and attendance allowances according to the provisions in the Convention for the Unification of Certain Rules Relating to International Carriage by Air (hereinafter referred to as the Warsaw Convention) and the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on October 12, 1929 (hereinafter referred to as the Hague Protocol) and the 75,000 US Dollars of limitation of liability as determined in the Mortreal Convention.

During the litigation, Lu Hong changed her claims and requested United Airlines to assume the liability of compensation according to the 100,000 Special Drawing Right (namely 132,099 US Dollars) prescribed in the Kuala Lumpur Agreement, and pleaded with the court to order United Airlines to bear 14,300 yuan of attendance allowances (including the 7,800 yuan of transportation fees of nurse attendants), 105,877.50 yuan of charge for loss of working time, 153,750 yuan of charge for loss of wages due to her incapacity to the post, 713,700 yuan of charge for loss due to her incapacity to be the manager, 50,000 yuan of spiritual solatia, 138,000 yuan of attendance and medical fees from then on to her 70 years of age, 66,299 yuan of attorney fees, 30,000 yuan of travel fees of the attorney, as well as the litigation costs for this case.

United Airlines argued that: as the party responsible for the accident, United Airlines had paid 86,748.10 yuan of medical expenses. Lu Hong mentioned the injury of meniscus of her right knee half a year after the accident, but could not prove that the aforesaid injury had relation with the air accident. As to the appraisal letter issued by the Judicial Appraisal Center of the Higher People's Court of Anhui Province Li Hong put forward, since the aforesaid appraisal was an appraisal conducted without the authorization of the court, so it could not be the evidence of this case, and another judicial appraisal should be conducted for the disability condition of Lu Hong. In this case, it was proper to take the appraisal letter issued by the appraisal institution entrusted by the court as the disability standards and to give compensation within the scope prescribed by law. As to the standards of compensation, this case should be governed by the provisions in the Warsaw Convention or the Civil Aviation Law of the People's Republic of China. The 100,000 Special Drawing Right prescribed in the Kuala Lumpur Agreement is only the limitation of amount for the carrier to implement the objective liability system and to decide whether or not to exercise the liability defense, instead of the liability of compensation for the passenger. The Kuala Lumpur Agreement is not international practice or international treaty, but the internal agreement between the carriers that are the members to International Air Transport Association. Lu Hong, as a passenger, was not a contracting party to this Agreement, and the contents of this Agreement were not included into the passenger transport contract, so she had no right to apply this Agreement to claim for compensation against United Airlines.

Upon trial, the People's Court of Jing'an District of Shanghai Municipality found that:

On May 12, 1998, Lu Hong took Flight UA801 of United Airlines from Hawaii, U.S.A to Hong Kong via Japan. When the plane was taking off at the Tokyo Narita Airport, the engine in its left wing malfunctioned, and the passengers on the plane urgently retreated. During the course of urgent retreat, Lu Hong was injured and sent to the Narita Red Cross Hospital for rescue. Her injury was diagnosed as the fracture of right ankle upon photographing by the hospital. On May 14, Lu Hong received an examination at Elizabeth Hospital of Hong Kong, and was diagnosed as the inflammation of right ankle flank, and the surgical operation could not be conducted immediately. After obtaining the consent of United Airlines, Lu Hong was hospitalized in Anhui Provincial Hospital for treatment on May 16, and was diagnosed as the fracture of inside, outside and rear ankle of right flank together with the smashing replacement. Anhui Provincial Hospital carried out two surgical operations on Lu Hong. On December 22, 1998, Lu Hong left the hospital and had a rest up to the end of March 1999. While Lu Hong was in the hospital due to the injury, she hired two nurse attendants for attendance; during the period after she left the hospital until she began to work, she hired one nurse attendant. Lu Hong's incomes from wages before the injury were 12,400 yuan per month, and her incomes from wages when she rested after the injury were reduced to 1,255 yuan per month, with a reduction of 11,145 yuan per month. After Lu Hong was injured, the United Airlines had ever delivered a letter to Lu Hong and showed that the liability for the accident should be assumed by the United Airlines, and the United Airlines assumed 86,748.10 yuan of medical expenses for Lu Hong's two surgical operations.

During the trial, upon application of United Airlines, the court entrusted the Personal Injury Judicial Appraisal Expert Committee of Shanghai Municipality to carry out judicial appraisal of the disability condition and grade of Lu Hong's right leg, and the aforesaid Committee draw a conclusion as follows: 1.The air accident caused the trimalleolar fracture of right ankle and arthrosis subluxation to Lu Hong, the activities of her left ankle were restricted now, her left ankle had lost 50% or more functions and her long-distance walking was restricted, her injury was comprehensively appraised as VIII Disability according to the 4.9.F in and the Attachment A8 to the Disability Appraisal for the Injured Persons in Road Transport Accidents; 2. In light of the injury of Lu Hong, she could be given 3 months of nutrition and 3 months of attendance by considering the actual situation; 3. The results of both Mcmurray and tensile tests of right knee joints of Lu Hong were negative, and it could not see the symptom of meniscus tear in the MRI flake submitted for inspection, and it was just a degenerative change, and had no direct causality with this air accident.

It was also found that: the ticket of United Airlines Lu Hong purchased states in the “Notice on the scope of liability for international passengers” that: with respect to the liability for the death or personal injury of a passenger, the limitation of compensation for losses as proved shall be 75,000 US Dollars for each passenger under most circumstances. The liability for such limitation has nothing to do with whether this company is at fault, and the aforesaid 75,000 US Dollars of limitation of liability includes the attorney fees and the expenses for attorneys.

The aforesaid facts could be verified by the ticket of Flight UA 801 of United Airlines Lu Hong took, the reports of Japanese Narita Hospital and Hong Kong Elizabeth Hospital, medical reports and two discharge summaries of Lu Hong issued by Anhui Provincial Hospital, as well as the correspondences between Lu Hong and the United Airlines, and they could be the basis for affirming the facts of this case upon cross-examinations and attestations.

The People's Court of Jing'an District of Shanghai Municipality held that:

In this case, there are concurrent provisions on the dispute over foreign passenger transportation contract and the dispute over infringement.

1. As to the application of laws to this case. Both parties chose the Warsaw Convention as the applicable law for this case.

Article 126 of the Contract Law of the People's Republic of China prescribes that: “The parties to a contract involving foreign interests may choose the law applicable to the settlement of their contract disputes, unless it is otherwise prescribed by law. If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied.” Which embodies the principle of party autonomy of our country in the application of the laws to the cases involving foreign interests, and has become an important principle for all the countries to handle civil and commercial legal relationships. The principle of party autonomy is relative and restrictive. All the countries in the world have imposed a certain degree of restriction on the principle of party autonomy in the litigation aspect, which is mainly reflected in the following three aspects: 1. the laws as chosen by the parties concerned shall have a material relationship with either the parties concerned or the contract; 2. the laws as chosen by the parties concerned shall not violate the public order; and 3. the laws as chosen by the parties concerned shall not violate the compulsory provisions. Therefore, the parties concerned shall choose the laws that have a material relationship with themselves or the contract concluded between them under the premise that the compulsory provisions are not violated. Paragraph 2 of Article 142 of the General Principles of the Civil Law of the People's Republic of China prescribes that: “If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations.” Paragraph 3 prescribes that: “International practice may be applied to matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions.” So it can be seen that our country will apply the laws to the civil cases involving foreign interests according to the following order: international treaty, domestic laws and international practice. The parties concerned shall conform to these provisions when choosing the laws applicable to the civil cases involving foreign interests by agreement.

Both our country and the America are members to the Warsaw Convention and the Hague Protocol. As a contracting party, our country has the obligation to abide by and perform the Convention, so this case shall be governed by the Warsaw Convention and the Hague Protocol in the first place. According to the principle of party autonomy, both parties chose the Warsaw Convention as the applicable law for this case, which is not against the compulsory provisions of our country on the application of laws to the civil cases involving foreign interests, so their choice shall be allowed.

2. As to the determination of the liability for breach of contract and the liability for tort. Lu Hong was injured and disabled when she took the flight of United Airlines, and thus claimed damages from United Airlines, and her claim for damages includes the compensation for spiritual infringement. The disputes occurred when taking airliners are usually the disputes over the passenger transportation contract and about the liability for breach of contract. However, if the injury inflicted when taking an airliner simultaneously infringes on personal rights, there may be the overlap of the liability for breach of contract and the liability for tort. Article 122 of the Contract Law prescribes that: “In case the breach of contract by either party infringes upon the other party's personal or property rights, the victim has the right to require the infringing party to assume liabilities for breach of contract according to this Law, or ask it/him to assume the liability of tort according to other laws.” It can be seen that the liability for breach of contract and the liability for tort can not be concurrently implemented to one civil case, the victim shall choose either of them. Lu Hong did not clearly choose the type of liability since she not only required United Airlines to assume the liability for breach of contract but also claimed for spiritual solatia. Under such a circumstance, it is important to provide necessary judicial assistance to the victim to help it/him to choose the type of liability. The important difference between the liability for breach of contract and the liability for tort lies in the scope of liability: the former shall be implemented in strict accordance with the stipulations in the contract and mainly compensate for the property loss; while the latter shall be determined in light of the results from the tort, including not only the compensation for property loss but also the compensation for personal injury and spiritual infringement. From the aspect of protecting the interests of the victim to the largest degree, the court chose the liability for tort for the victim in light of its authority.

3. As to the limitation of liability. The Hague Protocol prescribes that the carrier shall assume 250,000 francs of liability for each passenger, however, the passenger can stipulate a higher limitation of liability in a special contract with the carrier. In this case, the limitation of liability stipulated by both parties in the ticket is 75,000 US Dollars. The aforesaid limitation not only reflects the principle of party autonomy but also conforms to the Hague Protocol. Considering the international obligation a sovereign country shall abide by, the court shall affirm the aforesaid highest limitation of liability as stipulated by both parties.

The compensation for personal infringement shall be based on the losses actually incurred. The attendance allowances, charges for loss of working time and disability subsidies Lu Hong claimed from United Airlines shall be compensated by United Airlines if they are rational. Since the act of United Airlines caused a certain body and spiritual infringement to Lu Hong, so Lu Hong's claim for spiritual solatia shall also be allowed. According to the stipulations between both parties, the 75,000 US Dollars of the limitation of liability includes the attorney costs and expenses of the attorney. Therefore, Lu Hong's claim for the compensation of attorney cost and the travel fees of the attorney shall also be supported by taking the actual situation into consideration. Since the sum of all the above-mentioned compensations does not exceed 75,000 US Dollars, so they shall all be supported.

Based thereon, the People's Court of Jing'an District of Shanghai Municipality adjudicated on November 26, 2001 as follows:

1. The United Airlines shall, within 10 days after the effectiveness of this judgment, compensate Lu Hong the 7,000 yuan of attendance allowances, 105,877.50 yuan of charge for loss of working time, 186,000 yuan of disability subsidies and 50,000 yuan of spiritual solatia.

2. The United Airlines shall, within 10 days after the effectiveness of this judgment, compensate Lu Hong 16,595.10 yuan of attorney fee and 11,802.50 yuan of travel fees of the attorney Lu Hong have paid.

The 11,243 yuan of appraisal fees and 6,000 yuan of actual implementation expenses shall be borne by the United Airlines.

After the adjudication in the first instance, neither party filed an appeal, and the judgment of the first instance has come into force.

陆红诉美国联合航空公司
　国际航空旅客运输损害赔偿纠纷案

　　原告：陆红。
　　委托代理人：段爱群、陈钧，上海市华益律师事务所律师。
　　被告：美国联合航空公司。
　　公司驻上海办事处地址：上海市南京西路。
　　法定代表人：詹姆斯·爱德华·哥德温（JAMESEDWARDGOODWIN）。
　　委托代理人：金玉来、单少芳，上海市凯荣律师事务所律师。
　　原告陆红因与被告美国联合航空公司（以下简称美联航）发生国际航空旅客运输损害赔偿纠纷，向上海市静安区人民法院提起诉讼。
　　原告陆红诉称：原告在乘坐被告的班机过程中受伤，虽经手术治疗，现仍遗留功能性障碍，必须进行相应的功能锻炼及物理治疗，待适当时机再行手术，效果尚难肯定。致原告伤残且经济损失惨重，完全是被告的责任。经与被告多次协商赔偿，没有结果。为此，原告根据《统一国际航空运输某些规则的公约》（以下简称华沙公约）、《修订一九二九年十月十二日在华沙签订的统一国际航空运输某些规则的公约的议定书》（以下简称海牙议定书）的规定，以及《蒙特利尔协议》所确定的7.5万美元赔偿责任限额，请求判令被告赔偿原告伤残补助费及生活护理费计7.5万美元。
　　诉讼中，原告陆红变更诉讼请求，要求被告按照“吉隆坡协议”规定的10万特别提款权（即132099美元）承担赔偿责任。判令被告承担护理费人民币14300元（含护理人员的交通费用7800元）、原告的误工损失人民币105877.50元、原告不能胜任岗位工作造成的工资损失人民币153750元、原告不能担任总经理职务的损失人民币713700元、精神安抚费人民币5万元、原告从现在起至70岁的护理治疗费人民币138000元、本案律师费人民币66299元、律师差旅费人民币3万元，并判令被告负担本案的诉讼费用。
　　被告美联航辩称：作为事故责任方，被告已支付医疗费用人民币86748.10元，但原告在事故发生半年之后提出其右膝半月板损伤，却无法证明这个损伤与此次航空事故有关联。原告提供的安徽省高级人民法院司法鉴定中心的鉴定书，是非法院依法委托进行的鉴定，不能作为本案的证据使用，应当对原告的伤情重新进行司法鉴定。本案应以法院委托的鉴定机构作出的鉴定书所确定的伤残标准为依据，在法律规定的范围内进行合理赔偿。对于赔偿标准，本案应适用“华沙公约”或者《中华人民共和国民用航空法》的规定。“吉隆坡协议”中的10万特别提款权，只是承运人实行客观责任制和是否行使责任抗辩的数额界限，不是对旅客的赔偿责任。“吉隆坡协议”既不是国际惯例，也不是国际条约，仅是作为国际航空运输协会成员的承运人之间订立的内部协议。原告只是一名旅客，并非该协议的签约主体，并且该协议的内容也未纳入旅客运输合同中，故无权引用该协议向被告索赔。
　　上海市静安区人民法院经审理查明：
　　1998年5月12日，原告陆红乘坐被告美联航的UA801班机，由美国夏威夷经日本飞往香港。该机在日本东京成田机场起飞时，飞机左翼引擎发生故障，机上乘客紧急撤离。陆红在紧急撤离过程中受伤，被送往成田红十字医院救护。经该院摄片诊断为右踝骨折。5月14日，陆红到香港伊丽莎白医院作检查，结论为右踝侧面局部发炎，不能立即进行手术。陆红征得美联航同意后，于5月16日入住安徽省立医院治疗，诊断为：陆红右侧内、外、后踝骨折伴粉碎性移位。该院先后两次对陆红进行手术治疗。1998年12月22日，陆红出院，休息至1999年3月底。陆红受伤住院期间，聘用两名护工护理；出院后至上班期间，聘用一名护工护理。陆红受伤前的工资收入是每月人民币12400元，受伤后休息期间的工资收入是每月人民币1255元，每月工资收入减少人民币11145元。陆红受伤后，美联航曾向其致函，表示事故责任在于美联航，美联航承担了陆红两次手术的医疗费用计人民币86748.10元。
　　审理中，法院应被告美联航的申请，依法委托上海市人身伤害司法鉴定专家委员会对原告陆红右下肢的损伤情况和伤残级别进行司法鉴定，结论为：1、陆红因航空事故致右踝三踝骨折伴关节半脱位，现右踝关节活动受限，丧失功能50％以上，长距离行走受限，参照《道路交通事故受伤人员伤残评定》4.9.F及附录A8之规定，综合评定为Ⅷ级伤残；2、根据被鉴定人的伤情，可酌情给予营养3个月，护理3个月；3、被鉴定人右膝关节麦氏征及过伸试验均阴性，送检的MRI片示未见半月板撕裂征象，仅为退行性变，与本次航空事故无直接的因果关系。
　　另查明，原告陆红所购被告美联航的机票，在“责任范围国际旅客须知”中载明：对于旅客死亡或人身伤害的责任，在大多数情况下对已探明的损失赔偿责任限度为每位乘客不超过7.5万美元。到达这种限度的责任，与公司方是否有过失无关。上述7.5万美元的责任限度，包括法律收费和费用。
　　以上事实，有原告陆红乘坐的被告美联航UA801航班飞机票、日本成田医院和香港伊丽莎白医院的报告、安徽省立医院的就诊报告及陆红的两次出院小结、陆红与美联航之间的往来信函等证实。以上证据经质证、认证，均可以作为认定本案事实的根据。
　　上海市静安区人民法院认为：
　　本案是涉外旅客运输合同纠纷与侵权纠纷的竞合。
　　1、关于本案的法律适用。双方当事人对本案应适用的法律，一致的选择是“华沙公约”。
　　《中华人民共和国合同法》第一百二十六条规定：“涉外合同的当事人可以选择处理合同争议所适用的法律，但法律另有规定的除外。涉外合同的当事人没有选择的，适用与合同有最密切联系的国家的法律。”这是我国法律在涉外案件法律适用方面对“当事人意思自治”原则的体现，这已成为当今各国处理民商事法律关系的重要原则。“当事人意思自治”原则是相对的、有限制的。世界各国立法都对“当事人意思自治”原则有一定程度的限制，主要体现在三个方面：一是当事人所选择的法律必须是与当事人或合同有实质性联系；二是当事人选择的法律不违反公共秩序；三是当事人选择的法律不违反强制性规定。当事人必须在不违反法律强制性规定的前提下，选择与他们本身或者与他们之间的合同有实质联系的法律。《中华人民共和国民法通则》第一百四十二条第二款规定：“中华人民共和国缔结或者参加的国际条约同中华人民共和国的民事法律有不同规定的，适用国际条约的规定，但中华人民共和国声明保留的条款除外。”第三款规定：“中华人民共和国法律和中华人民共和国缔结或者参加的国际条约没有规定的，可以适用国际惯例。”由此可见，先国际条约，再国内法，再国际惯例，是我国法律对涉外民事案件法律适用顺序作出的强制性规定。当事人在协议选择涉外民事案件适用的法律时，必须符合这个规定。
　　我国与美国都是“华沙公约”和“海牙议定书”的成员国。作为公约缔约国，我国有义务遵守和履行公约，故本案应首先适用“华沙公约”和“海牙议定书”。根据“当事人意思自治”的原则，本案双方当事人也一致选择适用“华沙公约”。这一选择不违反我国在涉外民事案件法律适用方面的强行性规定，应当允许。
　　2、关于违约责任与侵权责任的确定。原告陆红因乘坐被告美联航的班机受伤致残，而向美联航索赔，索赔请求中包括精神损害赔偿。乘坐班机发生纠纷，通常是旅客运输合同纠纷，解决的是违约责任。但因乘坐班机受伤致残，违约行为同时侵犯了人身权利，就可能使违约责任与侵权责任竞合。合同法第一百二十二条规定：“因当事人一方的违约行为，侵犯对方人身、财产权益的，受损害方有权选择依照本法要求其承担违约责任或者依照其他法律要求其承担侵权责任。”由此可见，违约责任与侵权责任不能在同一民事案件中并存，二者必居其一，应由受损害方选择。陆红在请求美联航承担违约责任的同时，又请求精神损害赔偿，应视作对责任选择不明。在这种情况下，如何确定责任的选择，对为受害当事人提供必要的司法救济尤为重要。违约责任与侵权责任的重要区别在于，两者的责任范围不同。合同的损害赔偿责任严格按合同的约定执行，主要是对财产损失进行赔偿；侵权的损害赔偿责任按侵权造成的损害后果确定，不仅包括财产损失的赔偿，还包括人身伤害和精神损害的赔偿。从最大程度保护受害人利益的角度出发，法院依职权为受害当事人选择适用侵权损害赔偿责任。
　　3、关于赔偿责任限额问题。“海牙议定书”规定，承运人对每一旅客所负的责任，以25万法郎为限，但旅客可与承运人以特别合同约定一较高的责任限度。本案中，双方当事人在机票上约定的承运人赔偿责任限额是7.5万美元。这个限额不仅体现了“当事人意思自治”的原则，也符合“海牙议定书”的规定。从主权国家应当遵守国际义务考虑，法院对双方当事人约定的这一最高赔偿责任限额应予认定。
人身伤害的损害赔偿，应以实际造成的损失为依据。原告陆红请求被告美联航赔偿护理费、误工费、伤残补偿费，对其中的合理部分，应由美联航赔偿。由于美联航的行为给陆红造成了一定的身体与精神上的痛苦，陆红请求美联航赔偿精神抚慰金，亦应允许。按照双方当事人的约定，7.5万美元的赔偿责任限额内包括法律收费和费用。因此，陆红请求赔偿的律师费用和律师差旅费，也应当根据实际情况酌情支持。由于以上各项的赔偿总额并未超过7.5万美元，故应予支持。
　　综上，上海市静安区人民法院于2001年11月26日判决：
　　一、被告美联航于本判决生效之日起10日内，赔偿原告陆红的护理费人民币7000元、误工费人民币105877.50元、伤残补偿费人民币18.6万元、精神抚慰金人民币5万元。
　　二、被告美联航于本判决生效之日起10日内，赔偿原告陆红聘请律师支出的代理费人民币16595.10元、律师差旅费人民币11802.50元。
　　鉴定费人民币11243元、实际执行费人民币6000元，由被告美联航负担。
　　第一审宣判后，双方当事人均未上诉，一审判决已经发生法律效力。