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Abdul Waheed v. China Eastern Airlines Corporation Limited (Dispute over International Air Passenger Transport Contract)
阿卜杜勒·瓦希德诉东方航空公司国际航空旅客运输合同纠纷案
【法宝引证码】

Abdul Waheed v. China Eastern Airlines Corporation Limited (Dispute over International Air Passenger Transport Contract)
(Dispute over International Air Passenger Transport Contract)
阿卜杜勒·瓦希德诉东方航空公司国际航空旅客运输合同纠纷案
Abdul Waheed v. China Eastern Airlines Corporation Limited
(Dispute over International Air Passenger Transport Contract)
 

ABDUL WAHEED诉中国东方航空股份有限公司国际航空旅客运输合同纠纷案

Plaintiff: Abdul Waheed, male, 34, native of Pakistan, dwelling at Shuiqing No.1 Village, Minhang District, Shanghai. 问题提示:航空公司打折机票上注明的“不得退票,不得签转”,是否构成航空公司免除签转义务的一项免责事由?
Defendant: China Eastern Airlines Corporation Limited, domiciled at International Airport Avenue, Pudong New Area, Shanghai. 【要点提示】
Legal Representative: Li Fenghua, board chairman of the Corporation. 在航空运输合同中,航空公司打折机票上注明的“不得退票,不得签转”,只是限制旅客由于自身原因而退票和签转,不得剥夺旅客在支付了票款后享有的按时乘坐航班抵达目的地的权利。当不可抗力造成航班延误,致使航空公司不能将换乘其他航班的旅客按时运抵目的地时,航空公司有义务在始发地向换乘的旅客明确告知到达目的地以后是否提供签转服务,以及在不能提供签转服务时旅客应当如何办理手续。航空公司未尽此项义务或者不能证明自己已尽此项义务,而致换乘旅客形成一定损失的,应当承担赔偿责任。
Abdul Waheed was in dispute with China Eastern Airlines Corporation Limited (the defendant, hereinafter referred to as CE Airlines) over an international air passenger transport contract, and brought a lawsuit with the People's Court of Pudong New Area of Shanghai Municipality (hereinafter referred to as Pudong Court). 【案例索引】
Abdul alleged: He himself, his wife, his daughter and his mother-in-law (the other three people brought lawsuits in separate cases) planned to depart from Shanghai by air on December 31, 2004 and fly to Karachi. Since there was no direct flight, CE Airlines arranged Abdul, et al, to take its flight from Shanghai to Hong Kong first, and then to take the flight of Hong Kong Cathay Pacific Airways Ltd. (hereinafter referred to as Cathay Airways) to fly to Karachi. For this purpose, Abdul paid all the fares from Shanghai to Karachi, while CE Airlines also issued special invoices of international air passenger transport and the plane tickets to Abdul. On December 31, 2004, Abdul waited at Shanghai Pudong Airport to take CE Airlines' MU703 flight. Usually, the flight takes off in Shanghai at 11:00 AM, and lands in Hong Kong at 13:30. However, on that day, the flight was delayed for more than 3 hours, and did not arrive at Hong Kong until 16:30. When waiting at Pudong Airport, Abdul was aware that he would miss the connecting flight of Cathay Airways, and thus asked CE Airlines repeatedly about how to deal with the matter. CE Airlines' employee gave Abdul 4 “Registration Forms on Endurance”, and Abdul's wife filled out the forms and handed them to CE Airlines. Before boarding the airplane, Abdul asked again about how to deal with the matter after arriving at Hong Kong. CE Airlines' employee told him that since he had filled out the “Registration Forms on Endurance”, they would help resolve the matter. As a matter of fact, after the MU703 flight arrived at Hong Kong, Cathay Airways' flight had left. At Hong Kong Airport, a stewardess brought Abdul, et al, to the counter handling flight delays and then left. Later, a CE Airlines' employee came up. Abdul asked again about how to deal with the matter, but was told that one solution was to wait at the airport for another three days and then take Cathay Airways' next flight at Abdul's own expenses; another solution was that Abdul pay for another airline company's air tickets to Karachi at the charge of 25,000 HKD. Abdul refused to adopt these two solutions, and the employee no longer paid attention to him. His wife had to call CE Airlines, but was told that the relevant employees of CE Airlines had finished his work. His wife had no choice but to push over the airport's fence. Immediately, the security guards and the policemen of Hong Kong Airport came up to inquire. With the help of the security guards and the policemen, Abdul finally had no choice but to buy Emirates Airline's air tickets for the trip from Hong Kong via Dubai to Karachi as he was bringing his 8-month old daughter, for which he spent 4,721 HKD of additional air ticket fares and 759 HKD of luggage ticket fares, totaling 5,480 HKD. When the flight arrived at Karachi, they had been delayed for 15 hours, and the luggage could not arrive simultaneously. Abdul held that, CE Airlines had breached the contract as it failed to announce the flight delay in advance and to carry Abdul from Shanghai to Hong Kong in time; after the flight was delayed, CE Airlines broke its commitments by refusing to re-arrange Abdul's journey from Hong Kong to Karachi, and failed to inform that Abdul could have the air tickets endorsed or transfer to a connected flight, thus CE Airlines had gross faults. CE Airlines' acts had caused losses to Abdul, and should bear the liability for compensation. Abdul requested Pudong Court to order CE Airlines to compensate 5,990 Yuan of economic losses, to disclose its normal flight rate and complaint rate of passengers as it had promised, and to bear the litigation costs for the present case. 一审:上海市浦东新区人民法院[2005]浦民一(民)初字第12164号(2005年12月21日)
Abdul submitted the following items of evidence: 二审:上海市第一中级人民法院[2006]沪一中民一(民)终字第609号(2006年2月24日)
1. the special invoices of international air passenger transport with the par value of 22,647 Yuan and the air tickets and boarding passes of international air passenger transport, which prove that Abdul paid the air ticket fares for the whole journey from Shanghai to Karachi, established an international air passenger transport contractual relationship with CE Airlines, and flew from Shanghai to Hong Kong by taking CE Airlines' MU703 flight on December 31, 2004; 【案情】
2. the air tickets with the par value of 4,721 HKD, the luggage tickets with the par value of 759 HKD, and the boarding passes, which prove that Abdul had to buy other tickets in Hong Kong, and that Emirates Airline's flight to Karachi via Dubai was 15 hours later than the normal journey; 原告:ABDUL WAHEED,巴基斯坦国籍。
3. a fax bearing the specific requirements, which was sent by Abdul at the time of reservation, and which proves that CE Airlines obviously knew that Abdul was bringing an infant of 8 months old and Abdul would transfer in Hong Kong; 被告:中国东方航空股份有限公司。
4. a letter sent by the Service Quality Department of CE Airlines on May 23, 2005 on settlement of Abdul's complaint, which proves that CE Airlines acknowledged the delay of the MU703 flight taken by Abdul, and as a result, Abdul and his family missed Cathay Airways' flight to Karachi after arriving at Hong Kong, but CE Airlines refused to make any compensation; 上海市浦东新区人民法院经审理查明:2004年12月29日,原告购买了一张由国泰航空公司作为出票人的机票,机票列明的航程安排为:2004年12月31日11点,上海起飞至香港,同日16点香港起飞至卡拉奇;2005年1月31日卡拉奇起飞至香港,同年2月1日香港起飞至上海。其中,上海与香港间的航程由被告实际承运,香港与卡拉奇间的航程由国泰航空公司实际承运。机票背面条款注明,该合同应遵守华沙公约所指定的有关责任的规则和限制。该机票为打折票,机票上注明不得退票、不得转签。原告与其妻子、女儿、岳母同行(该三人另案起诉),女儿当时只有八个月大。2004年12月30日下午15点开始浦东机场下中雪,当日及次日许多航班因此延误。被告的MU1703航班也因为天气原因而延误了3小时22分钟,导致原告及其家属到达香港机场后未能赶上国泰航空公司飞往卡拉奇的衔接航班。原告及其家属在浦东机场时已经意识到,到香港后将错过国泰航空公司的航班,于是多次到被告的服务台,反复询问该如何处理。被告工作人员让原告填写了《续航情况登记表》,并表示,原告等人已经填好了表格,会予以帮助解决。原告及其家属到达香港后,被告工作人员告知原告只有两种处理方案:其一,为原告在机场里等候三天,然后搭乘国泰航空公司的下一个航班,三天的费用自理;其二,便是原告等人自己出资,另行购买其他航空公司的机票至卡拉奇。原告当即表示无法接受该两种方案。原告的妻子杜琳打电话给上海的被告,但上海方面称有关工作人员已经下班。原告因携带八个月大的女儿,无奈之下,最终由香港机场工作人员交涉,原告及家属一共支付了合计17000港元,购买了阿联酋航空公司的机票及行李票,搭乘该公司航班绕道迪拜,到达卡拉奇。为此,原告支出机票款4721港元、行李票款759港元,共计5480港元。双方庭审中一致同意按照1:1.07作为本案中港元与人民币的汇率。
5. the article “Passengers Talk about Civil Aviation in 2004: Disclosure of Customers' Appraisals” published on the magazine China Civil Aviation, which proves that CE Airlines formulated and promulgated the “Commitments on Passenger Services”, and that it promised to disclose its normal flight rates by quarter, and to focus on resolving the problem of flight delays. However, CE Airlines did not disclose the delay of the MU703 flight, and thus broke its promise; 原告诉称:被告航班延误,未能按时将原告从上海送往香港,已经构成违约;对于该航班延误,被告事先未通知,航班延误后,被告又违背自己作出的为原告等人妥善安排的承诺,拒绝为原告重新安排从香港到卡拉奇的航程,也未告知原告可以改签或者转机,存在重大过错。被告的行为给原告造成了相当的损失,应当予以赔偿。故诉请判令被告赔偿原告经济损失人民币5990元、按照其对外承诺定期对外公布航班的正常率、旅客投诉率,并承担本案诉讼费。
6. the article “Consumers' Interests Protection Committee Will Expostulate CAAC Next Month” as published on Labor News on July 20, 2005, which proves that the problem of flight delay has become a focus of complaints. 被告辩称:被告与原告不是全程运输合同关系,被告只就上海一香港段承担运输责任。原告的整个航程属于连续运输,由被告和国泰航空公司各自负责运输。被告不对全程运输承担合同责任,故原告到香港后,被告便不再承担责任。2004年12月31日的被告航班延误是因为天气原因造成,属于不可抗力,故被告不应承担责任。而且当天原告可以选择退票,也可以选择登机,原告自愿选择等待登机,且已经知晓将错过国泰航空公司的航班,故应当自己承担责任。被告在法庭辩论阶段提出追加国泰航空公司作为第三人,以便于查清本案事实。
CE Airlines argued: What Abdul held was an air ticket for continuing international air transport, on the basis of which CE Airlines and Cathay Airways should be responsible for the whole journey within their respective limits, and what CE Airlines should bear was the transport duties for the section from Shanghai to Hong Kong. There was no whole-journey transport contractual relationship between Abdul and CE Airlines, thus CE Airlines did not have to bear liabilities for the transport of the whole journey, but only needed to carry Abdul to Hong Kong. So it had fulfilled its obligations under the contract. The delay of the NIU703 flight on December 31, 2004 was caused by the bad weather, which was a force majeure, it did not have to bear any liability for the flight delay. On that day, Abdul could either return the ticket or board the airplane. However, Abdul boarded the airplane at his free will despite that he obviously knew he would miss Cathay Airways' flight, hence he should bear the liabilities by himself. In order to find out the facts of the present case, CE Airlines pleads to add Cathay Airways as a third person of the present case. 【审判】
CE Airlines submitted the following items of evidence: 上海市浦东新区人民法院认为:原告购买的机票出发地为我国上海,目的地为巴基斯坦卡拉奇,而我国及巴基斯坦都为《经1955年海牙议定书修订的1929年华沙统一国际航空运输一些规则的公约》(以下简称《经海牙议定书修订的华沙公约》)的缔约国,根据《经海牙议定书修订的华沙公约》第二十四条、第三十二条确立的强制适用规则,本案应当适用该《公约》。本案所涉机票的出票人为国泰航空公司而非被告,故被告与原告间并无直接的运输合同关系。因此,机票确定的上海与香港间的航程由被告实际承担、香港与卡拉奇间的航程由国泰航空公司实际承担,并不构成该两航空公司的连续运输,而是构成国泰航空公司为缔约承运人、被告为上海与香港间航段的实际承运人的关系。我国和巴基斯坦都为1961年《统一非立约承运人所作国际航空运输的某些规则以补充华沙公约的公约》(以下简称《瓜达拉哈拉公约》)的缔约国,故《瓜达拉哈拉公约》亦应适用。
1. a brief report on the operational conditions of Pudong Airport's operation center, which proves that many flights were delayed at Pudong Airport on December 30 and December 31, 2004 due to snowing and freezing; 本案所涉延误,发生在被告实际承运的上海至香港段航程,故根据《瓜达拉哈拉公约》第7条的规定,原告可以起诉被告,也可以起诉缔约承运人国泰航空公司,也可以同时起诉该两公司,对此原告有权根据其权利行使的便捷性、保障程度等因素而进行选择。被告在法庭辩论终结前提出了让香港国泰航空公司参加诉讼的申请,然而,本院根据本案案情的必要性、赋予旅客诉讼对象选择权的立法目的以及诉讼成本的衡量,认为无需追加。
2. a weather report issued by the Weather Center of East China Regional Administration of CAAC, which proves the bad weather at Pudong Airport on December 30 and December 31, 2004; 《经海牙议定书修订的华沙公约》第十九条规定,对于航空运输中延误所引起的对旅客、行李或者货物损失,承运人应负责任。第二十条规定,凡承运人证明,他和他的受雇人或者代理人为避免损害已经采取了一切必要措施,或者不可能采取此类措施者,他就没有责任。本案中,被告2004年12月31日的MU703航班因天气原因发生延误,被告对延误本身不应承担责任。然而,原告在浦东机场时已经预见到其将因航班延误而错过国泰航空公司飞卡拉奇的航班,因而多次反复询问被告工作人员,被告在应当知道国泰航空公司衔接航班三天才有一次的情况下,并未告知原告改日成行,而是让原告填写了《续航情况登记表》并告知将会帮助解决。在原告产生了合理的信赖而登机飞赴香港后,被告却未考虑原告的合理需要、将原告转签其他承运人,而是要求原告在等待三天后乘坐国泰航空公司的航班和自费另行购买其他航空公司机票的两难之间进行选择。对此,难谓被告已经为避免损害而采取了一切必要的措施。原告购买的机票虽然标注了不得退票、不得转签,然而,在因被告的航班延误而导致原告错过同一机票确定的衔接航班、并可能因此滞留中转机场的情况下,被告应当将原告签转给其他航空公司;除非被告在航程的始发地尽到了提醒和告知义务,并且航班延误的原因为客观原因。本案被告未在浦东机场提醒原告可能滞留香港机场,而是让原告填表使原告产生合理信赖,在香港又拒绝将原告转签其他航空公司。故此,被告不应免责,而应当对原告另行购买阿联酋航空公司的机票、行李票而造成的5480港元损失,承担赔偿责任。原告提出要求被告按照其对外承诺定期对外公布航班的正常率、旅客投诉率的诉讼请求,与原告的私权并无直接关联,故本院不予支持。
3. a testimonial issued by the Service Department of Airport Terminal Management Branch Company, which proves that CE Airlines had announced by loudspeaker the delay of the MU703 flight dated December 31, 2004; 根据《中华人民共和国民法通则》第一百四十二条、《经1955年海牙议定书修订的1929年华沙统一国际航空运输一些规则的公约》第十九条、第二十条、第二十四条第一款、《统一非立约承运人所作国际航空运输的某些规则以补充华沙公约的公约》第七条之规定,判决如下:被告应在本判决生效之日起十日内赔偿原告损失人民币5863.60元;的其他诉讼请求不予支持。
4. a settlement list of the abnormal flight service fee charges, which proves that CE Airlines provided the delayed passengers with drinks and catering services; 一审宣判后,被告中国东方航空股份有限公司不服,提起上诉。
5. a blank “Registration Form on the Flight Delay Information”, which proves the items in the form filled out by Abdul at that moment; 上诉人中国东方航空股份有限公司诉称:在航班延误的情况下,旅客有权选择航程,上诉人作为承运人只有将延误的情况如实告知旅客的义务,并无权利要求旅客改变航程。上诉人已经将因天气原因造成航班延误的情况告知了被上诉人,但上诉人并无权利要求被上诉人取消飞往香港的订座。上诉人从未对被上诉人作出任何承诺使其产生合理信赖,而被上诉人应当知道其必然错过衔接航班的事实。
6. Document 538 [2002] of East China Administration of CAAC, which proves that the air ticket office indicated on Abdul's invoices is not under the jurisdiction of CE Airlines. 被上诉人的机票上已经注明了“不得退票,不得转签”,故上诉人无须另行提醒和告知,即被上诉人的知情权未受任何侵害,上诉人不应承担赔偿责任。此外,一审法院对上诉人要求另一承运人国泰航空公司参加诉讼的申请不予支持,严重侵犯了上诉人的诉讼权利。要求撤销原审判决,改判驳回被上诉人的原审诉请。被上诉人ABDUL WAHEED则不同意上诉人的上诉请求,要求维持原判。
The court held a cross-examination of evidence in the court hearing. CE Airlines held: the special invoice seal affixed on the invoices as submitted by Abdul was a forged one, and CE Airlines had no such ticket office; the issuer of the air tickets submitted by Abdul was Cathay Airways, thus CE Airlines should only bear the transport liabilities for the section from Shanghai to Hong Kong; Abdul's Evidence No. 2 proves the time of Abdul's arrival at Karachi, but to CE Airlines, the MU703 flight was delayed by 3 hours due to bad weather before it arrived at Hong Kong, which is irrelevant to the time of Abdul's arrival at Karachi; although Abdul's Evidence No. 3 is true, it cannot prove that CE Airlines should bear the liability for his entire journey; Evidence No. 5 is the opinion of the media, which cannot prove that CE Airlines made “Commitments on Passenger Services”. Moreover, even if it is true, it is irrelevant to Abdul's litigation claims; Evidence No. 6 is irrelevant to the present case. Abdul held: Evidence No. 1 submitted by CE Airlines cannot prove the inability to take off on December 31 due to bad weather; although Evidence No. 2 proves that Pudong Airport was closed for one hour on December 30, 2004 due to snowing, it did not snow on December 31 when the flight should have been available during the whole day; Evidence No. 3 proves CE Airlines announced by loudspeaker the delay at 10:58 AM, only 2 minutes earlier than the planned time of departure, hence, even if CE Airlines did announce by loudspeaker the flight delay, such an announcement was blemished; Evidence No. 4 cannot prove CE Airlines fulfilled its obligations to the passengers in delay, as Abdul is a Moslem and could not take the non-halal foods provided by CE Airlines; Evidence No. 5 is not the “Registration Form on Endurance” filled out by Abdul at Pudong Airport as required by CE Airlines; and the authenticity of Evidence No. 6 cannot be confirmed. 上海市第一中级人民法院认为:根据《瓜达拉哈拉公约》的相关规定,东方航空公司为国泰航空公司授权承担部分运输的实际承运人,ABDUL WAHEED可以直接向东方航空公司主张权利,故原审法院对东方航空公司提出追加国泰航空公司作为被告的申请不予同意,并无不当。发生航班延误后,乘客有权在第一时间获取尽可能详细的信息,并及时了解后续进展以便作出最合理的选择。本案中,东方航空公司与ABDUL WAHEED均明知始发地因天气原因延误的航班必然导致错过中转地衔接航班的事实,ABDUL WAHEED作为乘客势必关心如何重新安排航程并充分相信航空公司应当予以解决,而东方航空公司作为负责安排航程的专业航空公司,理应明知此次航程中国泰航空公司的衔接航班三天才有一次,在此情况下东方航空公司更应及时告知和提醒ABDULWAHEED。原审法院认定“东方航空公司没有为避免损失采取了必要的措施”是正确的。在延误的航班到达香港机场后,东方航空公司拒绝为ABDUL WAHEEED签转机票,其主张ABDUL WAHEED的机票系打折机票,已经注明了“不得退票,不得签转”,其无须另行提醒和告知。但是,即使机票上标注了“不得退票,不得签转”,也是对乘客因自身原因要求签转和退票的限制,而本案中的航班延误并非由ABDUL WAHEED自身原因造成。ABDULWAHEED乘坐延误的航班到达香港后肯定需要重新签转机票,其必然是在相信东方航空公司会签转机票的情况下才选择乘坐延误的航班,而东方航空公司既未在始发地机场告知ABDUL WAHEED在航班延误时机票仍不能签转的理由,在中转机场亦拒绝为ABDUL WAHEED办理签转手续,此种处理方式显然不负责任。东方航空公司片面强调航班延误系天气原因属不可抗力,其已经将ABDUL WAHEED运送至香港,剩余航程与其无关,但其没有考虑到ABDUL WAHEED携带婴儿在中转机场滞留三天的艰难处境,ABDUL WAHEED在无奈的情况下只能另行购买其他航空公司的机票。综上,上诉人未能举证证明损失的产生系被上诉人自身原因所致,也未能证明其为了避免损失扩大采取了必要的方式和妥善的补救措施,故上诉人的上诉理由均无法成立。
CE Airlines said in the court hearing that the forms filled out by Abdul at Pudong Airport on December 31, 2004 were missing. 依照《中华人民共和国民事诉讼法爱法律,有未来》第一百五十三条第一款第(一)项之规定,判决如下:驳回上诉,维持原判。
It was verified by Pudong Court after the cross-examination and certification of evidence: 【评析】
On December 29, 2004, Abdul bought an air ticket issued by Cathay Airways. The air ticket sets forth the arrangement of the journey as follows: at about 11 o'clock, December 31, take CE Airlines' MU703 flight from Shanghai to Hong Kong; at 16 o'clock the same day, take Cathay Airways' flight to Karachi. The clauses on the back of the air ticket set forth that the contract shall comply with the liability rules and restrictions specified in the Warsaw Convention. The air ticket was a discounted one which means that it is non-refundable and non-endorsable. At 15 o'clock on December 30, 2004, it began to snow at Pudong Airport which had to be closed for 1 hour from 22 to 23 o'clock. As a result, 104 flights were delayed that day. On the next day, due to deicing, making up flights, and dispatchment, etc., 43 flights planning to take off at Pudong Airport were cancelled, and 142 flights were delayed. The normal flight rate was only 24.1%. On the same day, the MU703 flight was also delayed for 3 hours and 22 minutes due to bad weather, and Abdul, et al, were not able to catch Cathay Airways' connecting flight to Karachi after arriving at Hong Kong Airport. 本案为一起典型的因航班延误而引发的国际航空旅客运输合同违约损害赔偿纠纷案。其典型之处在于,由于航班延误而使得航空法中缔约承运人与实际承运人的关系、合理延误下承运人的义务范围、打折机票不得签转约定的解释、航班衔接等问题在同一案件中综合凸现。本案判决在诉讼主体的确定和打折机票签转问题两个方面作了较为重要的突破,可以为今后此类案件的审理起到先例的作用。
When waiting at Pudong Airport, Abdul and his family realized that they would miss Cathay Airways' connecting flight due to MU703 flight's late arrival at Hong Kong, so they asked CE Airlines' service counter about how to deal with the matter. CE Airlines' employee had Abdul fill out a “Registration Form on Endurance”, and said they would help resolve the problem later. After Abdul and his family arrived at Hong Kong, CE Airlines' employee told Abdul two solutions: one solution is to wait for another three days at Hong Kong Airport for Cathay Airways' next flight at his own expenses; the other is to buy air tickets from another airline company and fly to Karachi by spending approximately 25,000 HKD. Abdul immediately refused to accept either of the two solutions. Dulin, Abdul's wife who was bringing an infant, also refused to accept the either of solutions proposed by CE Airlines, and phoned CE Airlines anxiously, but was told that the relevant employees had left work. Finally, with the intervention of the employees of Hong Kong Airport, Abdul, et al, bought the air tickets and luggage tickets of Emirates Airline, and took the company's flight and flew to Karachi via Dubai. As a result, Abdul paid 4,721 HKD of air ticket fares, 759 HKD of luggage ticket fares, totaling 5,480 HKD. In the court hearing, both parties agreed on the HKD/Renminbi exchange rate at 1:1.07. 1.诉讼主体的确定
Pudong Court held: 原告所持机票为香港国泰航空公司出具,但航程分上海至香港、香港至卡拉奇两段,且两段分别由东方航空公司和香港国泰航空公司实际承运。那么,国泰航空公司和东方航空公司究竟是何种关系呢?东方航空公司在本案中辩称两者构成了连续运输的关系,而法院判决认定两者构成了缔约承运人和实际承运人的关系。
Abdul is a Pakistani citizen. The place of departure of the air ticket he bought was Shanghai, China, while the place of destination was Karachi, Pakistan. Paragraph 1 of Article 142 of the “General Principles of Civil Law of the People's Republic of China” prescribes: “The application of law in civil relations with foreigners shall be determined by the provisions in this Chapter.” Paragraph 2 prescribes: “If any international treaty concluded or acceded to by the People's Republic of China contains any provision different from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall prevail, unless the provisions are the ones on which the People's Republic of China has announced reservations.” Both China and Pakistan are contracting parties of the 1955 Protocol to Amend the Convention for the Unification of Certain Rubies Relation to International Carriage by Air, signed at Warsaw in 1929 (hereinafter referred to as the 1995 Hague Protocol) and the 1961 Convention Supplementary to the Warsaw Convention, for the Unification of Certain Rules To Carriage by Air Performed by Persons Other Than the Contracting Carrier (hereinafter referred to as the Guadalajara Convention), thus both international conventions are applicable in the present case. Paragraph 1 of Article 28 of the 1995 Hague Protocol prescribes: “An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.” Article 32 prescribes: “Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void.” Therefore, when Abdul brought a lawsuit upon the strength of the air tickets, Pudong Court of the People's Republic of China should have the jurisdictional power over the dispute over international air passenger transport contract. 如果两者构成连续运输,那么根据国际通行做法,除合同明文约定由第一个承运人承担全程责任外,旅客只能对经营发生事故或者延误的那段运输的承运人提出诉讼。如果两者构成缔约承运人和实际承运人的关系,那么在实际承运人履行的运输航段中出现问题的情况下,旅客可以起诉缔约承运人,也可以起诉实际承运人,也可以同时起诉该两者。故此,如何定性具有重要意义。
Paragraph (b), Article 1 of the Guadalajara Convention prescribes: “‘contracting carrier' means a person who, as a principal, makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor.” Paragraph (c) prescribes: “‘actual carrier' means a person other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary.” Article 7 prescribes: “In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to join in the proceedings, the procedures and effects being governed by the law of the court that accepted the case.” As the air ticket held by Abdul was issued by Cathay Airways, the international air passenger transport contractual relationship was established between Abdul and Cathay Airways, and Cathay Airways was the contractual carrier. There was no direct international air passenger transport contractual relationship between CE Airlines and Abdul, nor was CE Airlines a continuing carrier. Instead, CE Airlines was merely an actual carrier presumed to, upon authorization of Cathay Airways, complete the transport task determined on the air ticket for the section from Shanghai to Hong Kong. Abdul should be entitled to choose Cathay Airways or CE Airlines or both to be defendants and bring the lawsuit for damages; in the lawsuit for damages which Abdul brought only against CE Airlines, despite that CE Airlines had the right to require Cathay Airways to take part in the proceedings, the damages claimed by Abdul for the flight delay occurred in the journey from Shanghai to Hong Kong when CE Airlines was the carrier, and were irrelevant to Cathay Airways. Therefore, under the specific circumstance of the present case, and in consideration of the litigation costs, Cathay Airways did not have to be added as a party to take part in the proceedings. 根据《华沙公约》第一条第三款的规定,“连续运输”系由几个航空承运人连续进行运输;可以以一个合同或者几个相互联系的合同的方式订立,但被各方合同当事人当作单一运输过程。而根据《瓜达拉哈拉公约》第一条的规定,缔约承运人系以经营者的身份与旅客或者托运人订立运输合同,实际承运人为根据缔约承运人的授权办理全部或者部分运输的人,在没有相反证据证明时就认为授权是存在的。可见,连续运输的特点在于,各个承运人都是运输合同的缔约一方;而缔约承运人与实际承运人两者中,仅缔约承运人是运输合同的缔约一方。本案中,国泰航空公司是出票人,而东方航空公司并非出票人,故此两者应属于缔约承运人和实际承运人的关系。其实,从本案所涉客票形式的角度,也可进一步佐证这一观点。我国民航总局颁布的《中国民用航空旅客、行李国际运输规则》对“连续客票”的释义为“填开给旅客与另一本客票连在一起,共同构成一个单一运输合同的客票。”而本案中的客票仅有一本,东航并未向原告出具过另一本机票。
Article 19 of the 1995 Hague Protocol prescribes: “The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.” Paragraph 1 of Article 20 prescribes: “The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.” The MU703 flight of December 31, 2004 was delayed due to bad weather, so it was impossible for CE Airlines to take any measure to avoid the delay caused from force majeure, and consequently, CE Airlines did not have to bear liabilities for the delay, provided that it should prove that it had taken all necessary measures to avoid the losses incurred from the delay to the passengers, otherwise it should still bear the liability for the losses incurred from the delay to the passengers. In fact, when Abdul was at Pudong Airport, he foresaw that he would miss Cathay Airways' connecting flight due to the delay of the MU703 flight, so he asked CE Airlines' employee for many times on how to deal with the matter. CE Airlines should know there was only one Cathay Airways' connecting flight from Hong Kong to Karachi every three days, and even knew clearly that it was inconvenient for Abdul, et al, who were bringing an infant, to wait long at a transfer airport, so it was obligated to remind Abdul, et al, of the possible disadvantageous circumstances during the transfer, and to persuade Abdul, et al, to take flight on another day. However, CE Airlines failed to do so, but had Abdul fill out a “Registration Form on Endurance”, and told that it would help resolve the matter. Consequently, Abdul began to have reasonable reliance on CE Airlines, and boarded the airplane and flew to Hong Kong without any worry. Whereas Abdul, et al, came to Hong Kong after CE Airlines promised to help, as was the case was at that moment, CE Airlines should also endorse Abdul's air tickets to another airline company despite the tickets indicated non-refundable and non-endorsable, so as to help them fly to Karachi as soon as possible. However, CE Airlines ignored the reasonable requirement of Abdul, et al, who were bringing an infant, for flying to Karachi as soon as possible, but told Abdul the solutions of “helping resolve the matter”, i.e., to either wait for another three days for the next flight at his own expenses incurred during the three days, or buy the air tickets of another airline company at his own expenses. In this way, CE Airlines put Abdul, et al, in a dilemma of being unable to either leave or stay. CE Airlines did not take any necessary measure to avoid the losses incurred to passengers due to the flight delay, and thus shall not be exempted from liabilities. Abdul was forced to buy the air tickets of another airline company at his own expenses, thus CE Airlines shall be liable for compensating Abdul's 5,480 HKD of losses for buying the tickets. 《瓜达拉哈拉公约》第七条前段、我国《民用航空法》第一百四十三条我反正不洗碗,我可以做饭前段均赋予了旅客或者托运人在追究实际承运人所承运航段之责任时可以选择起诉对象的权利。然而,上述法条的后段又规定了:如只向这些承运人之一提出诉讼,则该承运人应有权要求另一承运人参加诉讼。在本案的法庭辩论阶段,被告东方航空公司提出了将国泰航空公司追加为第三人的申请。由此,便引申出一个问题:被告提出申请后法院是否必须追加当事人?法院对此有无裁量权?国际航空旅客运输往往涉及国外的航空公司,如追加的当事人在境外,则难免需要涉外送达,诉讼可能旷日持久,给旅客维权增加难度。再者,在旅客或者托运人起诉实际承运人的情况下,追加缔约承运人对于查明延误实事及其原因也无太大意义。基于以上衡量,本案一审判决认定:原告有权根据其权利行使的便捷性、保障程度等因素而选择起诉对象;根据本案案情的必要性、赋予旅客诉讼对象选择权的立法目的以及诉讼成本的衡量,对东方航空公司追加当事人的申请未予采纳。二审判决认同了这一意见。这对于今后此类航空旅客运输合同案件的处理,具有一定的先例意义。
Abdul required CE Airlines to keep its commitments to disclose its normal flight rate and passenger complaint rate. This litigation claim was not directly relevant to Abdul's private right, and should not be supported. 2.打折机票与合理延误下承运人义务范围的确定
Therefore, Pudong Court decided as follows on December 21, 2005: 根据造成延误的原因之不同,航班延误可分为合理延误和不合理延误。由承运人所无法控制的因素,如天气、空中管制、流量控制、突发事件、安检原因等造成的航班延误,属于合理延误。而因航班调配、机务维护、航行物资保障原因、机组人员原因所造成的延误,承运人应当预见并可以避免,故属于不合理延误。
1. CE Airlines shall, within 10 days as of effectiveness of the present judgment, compensate 5,863.60 Yuan of losses to Abdul; and 如果属于合理延误,那么承运人是否还应当承担相应的法律责任?根据《华沙公约》或者我国《民用航空法》的规定,承运人免责的前提是“为避免损害已经采取了一切必要的措施或者不可能采取此类措施”。在合理延误的情况下,承运人对于延误本身无过失故不需承担责任,但如果其未尽到勤勉尽责的善良管理人的注意义务以避免损害的发生,仍应承担相应的法律责任。判断承运人是否采取了“一切必要措施”,也即考察承运人的合同附随义务的范围,应当根据诚实信用原则和旅客的合理需要确定。承运人应当承担相应的义务主要包括:(1)告知义务,及时向旅客、托运人告知因为不可抗力不能运输的事由,以减轻旅客可能的损失;(2)协助义务,根据实际情况,为旅客或托运人进行相应的替代安排、协助旅客安排食宿等。
2. Abdul's other litigation claims shall not be supported. 我国民航总局1997年12月颁行的《中国民用航空旅客、行李国际运输规则》第六十条规定,在因为承运人无法控制或者不能预见的原因而造成旅客非自愿改变航程的,承运人应当考虑旅客的合理需要,并采取以下措施:(1)为旅客安排第一个能够定妥座位的航班或者签转给其他承运人;(2)改变原客票载明的航程,安排承运人的航班或者签转给其他承运人,将旅客运送到目的地点或者中途分运地点;(3)全额退票;(4)协助旅客安排食宿、地面交通等服务,但始发地旅客的费用自理。另外,如果合理延误造成旅客错失衔接航班的,则还应当按照承运人规定免费为旅客提供休息场所、食品、膳宿或其他承运人认为必要的服务。上述与国际通行做法基本吻合的规定对于当前我国司法实践中判断承运人在合理延误下的义务范围,具有重要的参考意义。本案判决亦在很大程度上参考了这一规定。东方航空公司MU703航班延误系因天气原因,故属于合理延误。但原告及其家人因为该延误而未能在香港赶上国泰航空公司飞卡拉奇的衔接航班,而且国泰航空公司的下一个航班要三天以后才有,此时将原告及其家人签转其他承运人才是合理的措施,否则,即使东航免费为原告一家在香港安排食宿也将使其长时间滞留于中转地。然而,东航拒绝签转,而是要求原告及其家人在自费购买其他航空公司的机票和自费留在香港机场这两者间进行选择。故此,法院认定东航具有过错,不能免责,应当赔偿原告的经济损失。
As for the 249 Yuan of case acceptance fee, Abdul shall bear 5 Yuan, and CE Airlines 244 Yuan. 当然,本案一个无法回避的问题是,原告及其家人所持机票为打折机票,机票上标注了“不得签转”,这是否构成了东航可以免除签转义务的一项免责条款呢?一方面,优惠的价格似乎可以成为免责条款的对价;另一方面,在运输淡季对机票进行打折又已经成为航空公司的惯例,而且是航空公司招揽客源的手段之一,如果一概认为承运人据此可以免去签转义务,那么事实上将使承运人的这一义务落空。故此,对“不得签转”约定的解释,应当采取一个公平诚信的解释角度。本案一、二审判决的对此的意见为:(1)如果由于乘客自身的原因导致错过航班,那么承运人可以拒绝签转;(2)如果合理延误而将使旅客错过同一机票确定的衔接航班并可能滞留中转机场,那么承运人在始发地可以要求旅客签转给其他承运人;(3)如果合理延误下承运人并未尽到第二点的告知义务,那么承运人有义务在中转机场将乘客签转其他承运人。
After the judgment of the first instance was announced, CE Airlines was dissatisfied, and appealed to No. 1 Intermediate People's Court of Shanghai Municipality (hereinafter referred to as Shanghai No. 1 Intermediate Court), alleging: A carrier is only obligated to truthfully inform the passengers of the delay when its flight is delayed, but is not entitled to require the passengers to change their flight journeys. In the present case, CE Airlines informed Abdul of the flight delay due to bad weather, but was not entitled to cancel Abdul's seat on the flight to Hong Kong. Abdul's air ticket indicates “non-refundable and non-endorsable”, so CE Airlines did not have to remind or inform him of the matter again. CE Airlines never made any commitment which may result in Abdul's reasonable reliance, and Abdul also knew that he would definitely miss Cathay Airways' connecting flight. A passenger has the right to choose his journey. Abdul was willing to choose to fly to Hong Kong when his right to know true information was not injured in any way, thus CE Airlines should not bear the liability for compensating Abdul's losses due to the delay. In addition, Pudong Court acknowledged CE Airlines' right to apply for permitting Cathay Airways (another carrier) to take part in the proceedings on the one hand, but refused to support CE Airlines' application on the other, which seriously injured CE Airlines' litigation rights. CE Airlines requested Shanghai No. 1 Intermediate Court to revoke the judgment of the first instance, and to amend it by rejecting Abdul's litigation claims. (一审合议庭成员:孙 黎 蔡东辉 姜纯兰 二审合议庭成员:王启扬 孙雪梅 周 寅 编写人:上海市浦东新区人民法院 蔡东辉 责任编辑:刘 峥)

Abdul argued: Before the MU703 flight took off at Pudong Airport, both CE Airlines and Abdul knew that they would miss Cathay Airways' connecting flight after arriving at Hong Kong, so Abdul asked CE Airlines' employee again and again how to deal with the matter. CE Airlines had Abdul fill out a “Registration Form on Endurance”, and promised to help resolve the matter. Abdul's air ticket indicates “non-refundable and non-endorsable”, which was in the knowledge of both Abdul and CE Airlines. Under such a circumstance, the commitment of CE Airlines' employee on helping resolve the matter of course meant they would help Abdul, et al, transferring to another flight to Karachi, and Abdul also knew there was such a flight at Hong Kong Airport. It was on this premise that Abdul and his family boarded the MU703 flight and flew to Hong Kong. It was not until Abdul arrived at Hong Kong Airport that CE Airlines proposed their “helping” solutions, which, to Abdul's surprise, were to had Abdul, et al, wait at Hong Kong Airport for another three days at his own expenses, or to buy the air tickets of another company at his own expenses. Wouldn't Abdul have thought of such solutions without the help of CE Airlines? Were it not for CE Airlines' “help”, Abdul would have waited at his home in Shanghai for three days, living a comfortable life and spending little money, which was much better than CE Airlines' “helping” solutions. CE Airlines charged the fees for the whole journey from Shanghai to Karachi, but refused to re-arrange the journey for Abdul after its flight was delayed, and eventually, Abdul suffered from both mental affliction and economic losses. Therefore, CE Airlines should certainly bear the liability for compensation. In the judgment of the first instance, the facts were clear, and adjudication was correct and should be sustained. 
Shanghai No. 1 Intermediate Court confirmed after trial that the facts found in the first instance were inerrable. 
The focus issues to be resolved in the second instance include: (1) In a lawsuit for damages against CE Airlines who was an actual carrier, shall its application for adding an contractual carrier to take part in the proceedings be permitted by the court? (2) What kind of liability shall an airline company bear against the passengers if its flight is delayed due to bad weather? And (3) May the airline company refuse to endorse any passenger who holds an air ticket indicating “non-refundable and non-endorsable”? 
Shanghai No. 1 Intermediate Court held: 
In accordance with Article 7 of the Guadalajara Convention, in the lawsuit brought by Abdul for damages against CE Airlines who was the actual carrier, although CE Airlines was entitled to apply for requiring Cathay Airways to take part in the proceedings, whether the application should be permitted or not was to be decided by the court that accepts the case. Pudong Court did not think Cathay Airways was relevant to the flight delay, so it decided not to add Cathay Airways as a party in the present case by taking the litigation costs into consideration on the basis of the facts of the present case. Such a decision is not inappropriate. 
Whatever reason it might be, once a flight is delayed, the stranded passengers should be entitled to get the most detailed information at the earliest time, and to timely know about the coming situation, so as to make the most rational option on the basis of the delay; the airline company is obligated to timely announce the information on flight delay, and, when required by each stranded passenger, to provide him with other journey information available to the airline company, so that the passenger may make a correct option. After the MU703 flight was delayed due to bad weather, Abdul who was a stranded passenger must have cared about his journey very much. When he realized that he would miss Cathay Airways' connecting flight after the delayed MU703 flight arrived at Hong Kong, he asked CE Airlines for many times about how to deal with the matter. CE Airlines had Abdul fill out a “Registration Form on Endurance”, and said it would help resolve the matter later. CE Airlines acknowledged that it had Abdul fill out the form, but thought what Abdul filled out was a “Registration Form on the Flight Delay Information”, instead of a “Registration Form on Endurance”. Whatever the “Registration Form on Endurance” or the “Registration Form on the Flight Delay Information”, CE Airlines never provided the forms filled out by Abdul's wife before Abdul, et al, boarded the airplane, so it is unable to prove that Abdul, et al, chose to board the airplane when they clearly knew the unfavorable consequence. From the registration made and the forms filled out before Abdul, et al, boarded the airplane, CE Airlines ought to know that Abdul, et al, were going to Hong Kong to transfer to Cathay Airways' flight toward Karachi, and that there was such a flight every three days, and that even if Abdul took Cathay Airways' next flight, he would have to stay at the transfer airport for three days at his own expenses. In such a case, CE Airlines was obligated to tell Abdul such unfavorable information so that he could decide whether or not to take the delayed MU703 flight and fly to Hong Kong. However, CE Airlines did not fulfill such obligations, but had Abdul, et al, fill out a “Registration Form on Endurance”, and promised to help resolve the matter. Therefore, it is correct for Pudong Court to affirm that CE Airlines did not take any necessary measure to avoid the losses incurred from the delay to the passengers. 
CE Airlines asserted that, after the MU703 flight arrived late at Hong Kong, it was because the discounted air tickets held by Abdul indicated “non-refundable and non-endorsable” that CE Airlines refused to endorse the tickets for Abdul, et al; and meanwhile, Abdul was clear about his own “non-refundable and non-endorsable” air tickets, so he did not have to be reminded or informed specially. An air ticket is the voucher proving the existence of the international air passenger transport contract. Once a passenger has paid the full amount of ticket fare, the airline company shall provide the passenger with complete transport services. But if the passenger buys a discounted air ticket, the airline company may of course cancel some services accordingly. The airline company indicated “non-refundable and non-endorsable” on the discounted air tickets, which merely restricted the passenger who paid discounted ticket fares from returning or endorsing the tickets due to their own reasons, but could not deprive of the passengers' right to fly to the place of destination on time after they have paid the ticket fares. When the MU703 flight was delayed due to force majeure, both CE Airlines and Abdul ought to know that they would definitely miss Cathay Airways' connecting flight after the MU703 flight arrived at Hong Kong; if Abdul, et al, intended to fly to Karachi, they had to have the air ticket endorsed. Since CE Airlines did not plan to have the air tickets which indicate “non-refundable and non-endorsable” endorsed in Hong Kong Airport, it should be obligated to inform Abdul at the airport of departure, and dissuade him to take the delayed MU703 flight. However, CE Airlines did not fulfill this obligation, and thus Abdul took the MU703 flight and arrived in Hong Kong, believing that CE Airlines would endorse the air ticket, and was then in a dilemma of being unable to either leave or stay. He had no choice but to buy other tickets. CE Airlines' irresponsible behaviors were obviously the fundamental cause of Abdul's ticket fare loss. CE Airlines unilaterally stressed that MU703 flight was delayed due to force majeure, that it had notified Abdul of the flight delay, that it followed Abdul's will to carry them to Hong Kong, and thus fulfilled its obligations under the International Air Passenger Transport Contract. CE Airlines asserted that it had nothing to do with Abdul's remaining journey. As a matter of fact, had CE Airlines clearly informed Abdul of all the unfavorable consequences of flying to Hong Kong, he would have avoided his losses. Therefore, it was not inappropriate for Pudong Court to affirm that CE Airlines failed to perform its informing and reminding obligations at the place of departure, and to order CE Airlines in accordance with Article 19 and Paragraph 1 of Article 20 of the 1995 Hague Protocol to bear the liability for compensation. 
To sum up, CE Airlines failed to prove with evidence that the flight to Hong Kong was the option made by Abdul without any effect, or to prove with evidence that it had taken all necessary measures to avoid the damage to passengers due to the flight delay, hence its appellate grounds are untenable, and shall not be supported. Therefore, in accordance with Item (1) of Paragraph 1 of Article 153 of the “Civil Litigation Law of the People's Republic of China”, Shanghai No. 1 Intermediate Court decided as follows on February 24, 2006: 
The appeal shall be rejected, and the judgment of the first instance be sustained. 
The 249 Yuan of appellate case acceptance fee shall be borne by CE Airlines. 
The present judgment shall be final.法宝 
     
     
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