How to protect the rights of passengers in aviation accidents?

  Liuye

  The Captain, who is popular in the cinema recently, is based on the real event that the crew of Sichuan Airlines Flight 3U8633 successfully handled the special situation on May 14, 2018. Apart from the bright cast, the dangerous movie plot has added a lot of help to the box office of the film and won unanimous praise from the audience. At the same time, the safety of aircraft has also become a hot topic. How to protect your rights and interests to the maximum extent once you have suffered from safety problems such as plane crash?

  one

  How to file a lawsuit effectively?

  In the event of a plane crash, it is necessary to file a lawsuit to protect rights. First of all, the following questions should be clarified: Who is entitled to claim damages? Who should be responsible for the accident? Where should I file a lawsuit? In other words, "who" is qualified to tell "where"?

  Generally speaking, due to aviation accidents, their lives, health and bodies were damaged. Surviving passengers in aviation accidents, as people who suffered personal injuries directly, are undoubtedly the right holders of compensation for the accidents. However, if the passenger dies, according to the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, the "compensation obligee" refers to the victim who directly suffered personal injury due to tort or other causes of injury, the dependents whose support obligations are assumed by the victim according to law, and the close relatives of the deceased victim. Therefore, the spouses, parents and children, brothers and sisters, grandparents, grandchildren and grandchildren of the victims are all compensation rights holders and enjoy independent claims for damages.

  Regarding the defendant, based on the transportation contract relationship between the passenger and the airline, the airline has the obligation to safely deliver the passenger to the destination according to the agreed time. When a plane crash occurs, the airline should be responsible for the personal injury and loss of luggage and property of passengers, and passengers can claim compensation from the airline based on the liability for breach of contract or tort.

  Regarding which court the victim should file a lawsuit, this is a prerequisite in the litigation procedure. When entering the litigation procedure, the first thing in the litigation procedure is the attribution of jurisdiction. According to the provisions of Article 29 of China’s Civil Procedure Law: "A lawsuit for claiming damages due to railway, highway, water and aviation accidents shall be under the jurisdiction of the people’s court where the accident occurred or where the vehicle or ship first arrived, where the aircraft first landed or where the defendant lived", that is, these places can be the competent courts, and the parties can choose according to their own circumstances.

  2

  How to determine the amount of compensation?

  Generally speaking, after the plane crash, the injured passengers or the families of the victims of the air crash can get the following compensation: first, the compensation borne by the carrier, that is, the airline; The second is the compensation borne by the insurance company.

  According to Article 3 of the Provisions on the Limits of Liability of Domestic Air Transport Carriers, the carrier shall be liable for compensation according to the actual damage within the following limits: First, the limit of liability for each passenger is 400,000 yuan; Second, the liability limit for each passenger’s carry-on articles is 3000 yuan; Third, the limit of liability for luggage checked by passengers and goods transported is 100 yuan per kilogram.

  At the same time, according to Article 166 of the Civil Aviation Law: "The operator of a civil aircraft shall insure the third party liability insurance on the ground or obtain the corresponding liability guarantee." Therefore, if the operator of the aircraft insured the corresponding insurance according to the regulations after the air crash, the insurer or guarantor should also pay the compensation according to the amount agreed in the contract.

  In addition, if passengers voluntarily take out personal accident insurance for air passengers with insurance companies, the amount of insurance obtained through this accident insurance will not exempt or reduce the liability for compensation that the carrier should bear. Personal accident insurance for air passengers covers the period from the time when the insured steps on the hatch of the plane to the time when the underground plane arrives at the destination and walks out of the hatch. It mainly protects the insured passengers from personal injury caused by accidents during boarding, taxiing, flying and landing. Passengers, regardless of their age, can choose whether to buy or not voluntarily. The insurance premium of each policy is generally 20 yuan, with the insured amount of 200,000 yuan. The same applicant can buy 10 copies, with the maximum insurance amount of 2 million yuan, and the guarantee period is within 180 days from the date of the accident.

  The law also clearly stipulates which items should be included in the amount of compensation. According to the provisions of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, if passengers on board suffer personal injury due to an airplane crash, the expenses incurred for medical treatment and the income reduced due to missed work include medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses. If disabled due to injury, it also includes disability compensation, disability assistive devices, living expenses of dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment. If the passenger dies, it shall also compensate the funeral expenses, the living expenses of the dependents, the compensation for death, and other reasonable expenses such as transportation expenses, accommodation expenses and lost time. In addition, if a victim or a close relative of the deceased suffers from mental damage, the obligee can also ask the people’s court for compensation for mental damage according to the Interpretation of the Supreme People’s Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Tort.

  In practice, the court will generally refer to the following factors when making claims: the age of the victims, the younger the compensation, the higher the compensation; The level of the income of the victims, this standard is based on the tax payment of the victims; Disability level of injured passengers.

  three

  Is it responsible for causing damage to the third person on the ground?

  In the plane crash, the airline has a legal responsibility for the passengers on board, mainly because the two parties form a contractual relationship of air transportation. However, if the third person on the ground is injured or even killed, this responsibility constitutes tort liability. In China, such cases are classified as disputes over compensation for damage caused by aircraft to the third person on the ground and on the water.

  According to the provisions of China’s civil aviation law, if a civil aircraft in flight or a person or thing falling from a civil aircraft in flight causes personal injury or property damage on the ground (including water), the victim has the right to compensation. In terms of the distribution of legal liability, according to Article 71 of the Tort Liability Law: "If a civil aircraft causes damage to others, the operator of the civil aircraft shall bear tort liability, but it can prove that the damage was intentionally caused by the victim and shall not bear the responsibility." That is to say, unless the damage is intentionally caused by the victim himself, the operator of the civil aircraft shall be liable for compensation.

  As for the limitation of action, the civil aviation law clearly stipulates that the limitation of action for compensation for damage to the third party on the ground is two years from the date of the damage; However, in any case, the limitation period shall not exceed three years from the date of the damage.

  Extended reading

  General rules for handling international aviation accidents

  International air crashes are generally solved by the Montreal Convention, which is applicable to handling insurance claims for global aviation accidents. The Montreal Convention came into effect in 2005 for China. According to the regulations, it applies the "double gradient responsibility system" to the compensation for personal injury in international air transport, and applies the no-fault responsibility system within the first gradient. Regardless of whether the passenger is at fault or not, the carrier must bear 113,000 special drawing rights (the drawing rights are not a constant sum and will be revised every five years) for the compensation for personal injury and death of passengers, and the liability shall not be exempted or limited. Within the scope of the second gradient, the carrier can be exempted from liability if it can prove that the loss is not caused by the negligence or other improper acts or omissions of the carrier or its employees or agents; The loss is entirely caused by the fault of a third party or other improper acts or omissions.

  Therefore, in the case that the cause of the aviation accident is unknown, the victims and their families can also exercise the right of special drawing to obtain special drawing, which does not affect the determination of responsibility and the continued addition of compensation afterwards.

  In the previous "Malaysia Airlines Incident", the departure place, destination and airlines of Malaysia Airlines Flight MH370 were all signatories to the Montreal Convention, and the responsibility for airlines followed this international convention. Because the cause of the "Malaysia Airlines Incident" is still uncertain, the period of compensation litigation is too long, which is a long tug-of-war for the victims’ families.

  Calculation standard of foreign aviation accident compensation amount

  In the air crashes around the world and in the legal practice in China, the actual amount of compensation varies greatly due to the specific circumstances such as the cause of the accident and the identity of the casualties, and the amount varies greatly.

  The compensation for air crashes in the United States is generally calculated by the "income method for the rest of life". This method multiplies the existing and expected annual income of the dead and wounded by the expected life span of the dead and wounded (usually 60 years old), and then subtracts its expenses and taxes. Simply put, it is assumed that the victim can live to 60 years old and pay compensation with the amount that may be earned between the current age and 60 years old. Therefore, the compensation amount ranges from hundreds of thousands to tens of millions of dollars, which is quite different. Previously, China’s "Baotou air crash" used the "Income from the Remaining Life Law" for reference in the practical application of accident compensation. At that time, all 47 passengers, 6 crew members and 2 people on the ground were killed. In the process of compensation, the basic amount calculated by this method was used as a reference to determine the basic starting point of compensation negotiations, and finally it was decided that the per capita compensation was 210,000 yuan.

  In Japan, the compensation amount standard mainly considers the comprehensive factors such as the victim’s degree of victimization, the victim’s age, occupation, income, family burden and future development potential, and there is no limit on the compensation amount.