Abstract China's current flight delays are common occurrences.As the current legal definition of the flight delays is not clear, the burden of proof is difficult, airlines and passenger information asymmetry between, leading to difficult to protect the legitimate interests of passengers. I intended when interpreting contract law and the relevant provisions of the Civil Aviation Act, based on the one hand, should be clearly recommended airline's responsibility, on the other hand should be defined according to the amount of compensation and the way to balance the interests of both sides to build offensive and defensive legal mechanism.
Paper Keywords flight delays sources of law liable to pay compensation limit
In recent years, with the rapid development of China's aviation industry, flight delays become one of the hot issues. Carrier and the passenger disputes occur frequently, causing airlines reputation and efficiency losses.
Civil aviation, flight delays for the explanation often only two words, such as weather, air traffic control, mechanical failure, aircraft deployment. Excuse simply refined, but also reflects the complex background, the objective existence of aviation poor transmission of information, delays are not clear. Civil aviation has also long been considered not be necessary to explain to visitors, but after a delay services to visitors lack nuanced. Passenger side, for most travelers choose air travel, is a convenient and comfortable figure too. If run into flight delays, this desire will undoubtedly be greatly reduced. The information at this time delay and then not know, time-delayed, passengers will certainly unacceptable, disputes occur naturally.
In fact, the flight delays is a worldwide problem. 2010 winter I go to Britain exchanges in Amsterdam, the Netherlands airport transit flight delays encountered when the situation. The good news is that KLM Royal Dutch Airlines to 50 euros per passenger compensation vouchers for machine consumption, such an approach has been welcomed by visitors. However, China's aviation delays to passengers compensation mechanism is not yet ripe, this paper aims to explore the liability of flight delays, flight delays and legislative proposals.
Second, the flight delays and its associated source of law
Problem of flight delays on the main source of law 'Contract Law', 'Civil Aviation' and the civil aviation authorities of the relevant rules and to participate in 1929, 'the Warsaw Convention.' Here, the author does not go into details of which shall be specific provisions in respect of each method of analysis of the links between sources.
As the 'Civil Aviation Act' is the 'Contract Law' special law, in dealing with the issue of flight delays, especially law should take precedence. Comparison of the two law difficult to find, 'the Civil Aviation Law' on 'contract law' the provisions of the obligation on the delay also has developed a successor. Specifically: From the perspective of responsibility principle, 'the Civil Aviation Law' Article 126 established the principle of presumption of fault, as long as the carrier can prove that the loss in order to avoid the occurrence took all necessary measures or impossible to take such measures do not accept responsibilities. 'Contract Law' Article 299 does not require fault, as long as the carrier delays in carriage, it should be arranged according to the requirements of passengers switch to or refund. From the form of liability perspective, Article 126 clearly liability for damages, and the 'Contract Law' Article 299 specifies only to switch and arrange a refund, did not mention damages. However, according to General Regulation 107 provides that the parties do not comply with the contract to fulfill contractual obligations, it shall continue to perform and take remedial measures, or damages. Therefore, the delay caused by passenger transport if the actual loss, passengers may request the carrier compensation. Two law does not contradict the provisions herein.
In addition, 'the Civil Aviation Law' Article 126 lies in the implications of the distinction between reasons for flight delays. In other words, if the flight is delayed due to force majeure, then the carrier is not liable. Such a provision also with the 'Contract Law' and consistent, though not mentioned in Article 299 of the carrier's exemptions, but the General Regulation 117 can be applied. Visible, analyze causes delay in performance is necessary, I will make a specific analysis below.
In short, 'the Civil Aviation Law' and the 'Contract Law,' the whole is the same strain, but also in terms of the profit and loss responsibility principle. The reason is that: first, the 'Contract Law' principle adopted no-fault principle, Article 299 is no exception. It provides a form of liability is to arrange and switch to a refund, and the carrier's main duty is to travelers to the agreed place, regardless of any delay in performance is due to the carrier should switch to and actively arrange refund. The 'Civil Aviation Law' Article 126 focused on the carrier's liability for damages described. Responsibility Responsibility Principle on different forms vary. Second, look at the legislative intent, flight delays are sensitive issues in real life, on the one hand to fully protect the interests of the individual travelers, we must also show consideration for airline benefits. Do such a trade-off is due to the special nature of the air transport industry, complexity and unpredictability. Thus, in order to protect the rights of travelers mining presumed fault, the burden of proof on the carrier; also taking into account the emergence of force majeure, insisting carrier's liability, will cause its huge economic losses, thus giving the opportunity to the carrier exemption. Third, Section 126 is also consistent with international treaties. 'Warsaw Convention', 'Montreal Convention' are used presumed fault principle, China, as the 'Warsaw Convention' States parties are obliged to adopt appropriate formulation is consistent with domestic law. This is also the principle of presumption of fault to determine the important factors. In clarifying the 'Contract Law' and the 'civil law' relationship, then for the 'civil law' to elaborate specific provisions.
Third, the flight delays due to legal implications and v.
(A) Definition of flight delays 'flight delay' is defined primarily in the 'Aviation Law' Article 126, 'Civil Aviation Interpretation' further explained the carrier failed to transport contract or a reasonable period of time the passengers arrive the place of destination. The contract generally refers to the time on the ticket or flight schedules carrier stated on passenger arrival time. If the contract does not expressly agreed specific delivery time, it should be based on the need to complete the transport time to determine whether it constitutes a reasonable delay.
I believe that the above explanation obviously unreasonable. Since the carrier stated on the flight schedule flight arrival time is generally expected time, itself contains uncertainties and therefore common practice with reference to national airlines for delays incurred by the carrier should be interpreted as only a 'best effort reasonably rapid transport of passengers and baggage. 'obligations. If the carrier failed to prove that this obligation has been fulfilled, it constitutes an unreasonable delay.
(Two) due to flight delays v. Air Transport is a complex system activity. Any one part of problem will affect the normal safe operation of air transport. Air transport high-tech, high-risk decision causes flight delays is very complex. According to CAAC statistics, there are reasons for flight delays caused by bad weather, airline reason, flow control, maintenance, airports, passengers causes joint inspection systems and other categories. Reasons such as these are often intricately intertwined, what kinds of reasons of force majeure, which is the carrier's own problems existing laws and regulations have not been reunified. 'China's civil aviation passenger and baggage domestic transportation rules' on page 57 and 58 cited a number of reasons but still not exhaustive. Civil Aviation Administration issued a 'financial compensation for flight delays guidance' are not clearly defined, not to mention the views of an internal document that does not have the force of law, only public commitment by airlines only have contractual effect.
China's current legislative guide is to take care of the interests of airlines, and consider the interests of passengers less. Information asymmetry between the contract, by contrast, the carrier proof ability, but because of flight delays caused by passengers proof of actual loss is much more difficult. I propose to solve this problem, you should modify the provisions of relevant laws and regulations uniform liability reasons, OK 'unreasonable delay' meaning and specific compensation standards to ensure the legitimate rights and interests of consumers and fair performance of the contract of carriage.Links to free download http://eng.hi138.com
Fourth, according to flight delays Responsibility Rules and Regulations
As a party to the contract of carriage, the airline's main contractual obligations in accordance with the agreed time, the travelers reach their destination safe and timely manner, in the face of delays have informed, assistance, redress and compensation obligations. The passenger in the face of flight delays have three rights: the right to know, to choose and the right to claim. Now the liability of flight delays is analyzed as follows:
(A) the nature of liability Although air tickets listed on the expected delay time can not be considered as a direct basis, but it does not negate the contract between the airline and the passenger relations and delays occurred liability. As long as the airline violated reasonable best efforts prompt delivery obligations resulting travelers frustrated the legitimate expectations should bear liability for breach.
(Two) the period of responsibility, 'the Civil Aviation Law' Article 125 provides air transport period is: 'In the airport, aircraft or at any place of landing outside the airport, checked baggage, cargo is in the charge of the carrier period.'
(Three) the principle of presumption of fault attributable to the principle.
(Four) the form of an obligation. Damages from 'the Civil Aviation Law' Article 126 that: a passenger on the occurrence of damage to the facts bear the burden of proof. Second, the conditions for exemption is to prove that the carrier has taken the necessary measures to avoid the damage or force majeure. Third, the responsibility limit. 'Montreal Convention' in the 'Warsaw Convention' based on the increase of the limits of liability 4150SDR iv, reduce airline delays responsibility, and China has not yet promulgated laws and regulations on the liability limit.
Need to be clear, is not necessarily caused by flight delays, the issue of compensation, only to passengers due to flight delays caused by the actual economic losses, the carrier is only liable for damages. Actual economic loss due to flight delays, including room and board costs, endorsable tickets and additional costs incurred other travelers can indeed prove a direct loss. In real life there are passengers require airlines compensation for flight delays caused by the indirect losses, such as the case of bungled opportunities, because the airline business are unaware of conclusion of the contract and can not be foreseen, should be excluded.
At present, 'the Civil Aviation Law,' is still a matter of principle, not in the relevant laws and regulations in specific, which led to many problems in practice. Such as flight delays occurred a little one, some travelers would require compensation. Even induce non-ethical behavior, some of the passengers in the reasons for the delay eliminated denied boarding, the purpose is to obtain compensation from the airline. Such institutional defects induced travelers irrational rights, interfere with the normal order of air transport, resulting in greater losses to the airline.
(2) Other forms of liability, including refund, Meal, a seating area, accommodation, transport and communications facilities. The first two forms of liability for breach of the general performance of the return and replace concrete manifestation in the field of aviation law, while the remaining form of liability is the principle of good faith in the development of the field of air law that the carrier's accompanying obligations.
(Five) exemptions is one of the carrier exemptions emergence of force majeure, which is closely related to the reasons for flight delays. Regulatory authorities should be classified reasons for the delay will be clear what force majeure. Only in this way in the face of airline delays can recognize their own responsibility to provide appropriate solutions to promote the settlement of disputes. But also to promote the airport and the air traffic control sector in a serious and responsible attitude to prevent and reduce delays, loss of accountability for the airline delay provide the basis for third-party liability.
In summary, I believe that the system in accordance with regulations, 'flight delay' issue, should first clarify its legal definition, and secondly should analyze the airline should bear legal responsibility, and refer to the 'Montreal Convention' approach to determine the delay limits of liability.Links to free download http://eng.hi138.com