Challenges to Exclusivity of the Conventions in Flight Delay Caused by Force Majeure
公约排他性适用在实践中的困惑——以不可抗力导致航班延误为例
Dr. Jessika Ko
柯莉娟博士(1)
20th July 2019
Outline
1. Introduction
2. Exclusivity of the Conventions
2.1 From Warsaw to Montreal
2.2 Exclusivity in the Warsaw Convention
2.3 Exclusivity in the Montreal Convention
2.4 Flight Delay Remedy under the Conventions
3. Socio-economic and Cultural impacts on Claims for Force Majeure Delays
3.1 Definitions for Flight Delays Caused by“Force Majeure”
3.1.1 Notions of Flight Delays
3.1.2 Notions of Delays Caused by Force Majeure
3.1.2.1 Taiwan and Mainland China
3.1.2.2 The US and the EU
3.1.3 Summary
3.6 Air Carriers’Remedies in Delays Caused by Force Majeure
3.2.1 Taiwan and Mainland China
3.2.2 The US and the EU
3.3 Summary
4. Conclusions
1. Introduction
The 1929 Warsaw Convention and its successor, the 1999 Montreal Convention, formally entitled the Convention for the Unification of Certain Rules for International Carriage by Air, attempted to unify“certain rules”relating to air carriers’liability for passengers’death, bodily injury and delay damage caused to passengers, luggage and cargo.(2) The unified liability provided by two Conventions relies on the exclusivity principle specified in the same Conventions. However, such remarkable exclusivity principle is gradually eroded by national law in balancing passenger protection which has attracted increasing attention internationally, highlighted by air travel disruption caused by natural disasters, or caused by accidents. Furthermore, the experience from the author's own legal practices of almost thirty years in handling passengers’claims shows that the mentioned two Conventions provide limited scope for pecuniary and non-pecuniary claims for passengers. In short, passengers on the same flight could be treated differently depending on where they made their claims and under which grounds. As a result, making more laws or international conventions cannot guarantee an effective and unified solution for passengers’claims for flight delay.
This paper therefore aims to illustrate challenges to the exclusivity principle under the Conventions by brief comparative studies related to claims for flight delays caused by Force Majeure(3) in international air transportation. The brief comparative studies stem from a combination of the analysis of case law and statutes on one hand, and experience drawn from professional practice and cultural context on the other. Furthermore, this paper discusses the intersection of international conventions, national legislation, as well as the practice and expectations of air carriers and their passengers. In terms of national remedy mechanisms, research and analysis have been focused on the advanced aviation markets in the West and on the emerging markets in the East. These research and analyses reveal how national legislations, which are deeply influenced by socio-economic and cultural impacts, trigger distinct conflicts of interest between air carriers and passengers. Accordingly, the findings support a conclusion that a novel solution, free from the uncertainties and complexities in the current legal framework, is needed to resolve passengers’claims or expectations resulting from death and injury caused by accidents and from force majeure delays.
2. Exclusivity of the Conventions
Can the international legal framework governing air carrier liability, the Warsaw and the Montreal Conventions, provide harmonized answers as to who should be responsible for flight delays caused by force majeure? The answer is an unequivocal“no.”Why? To date, only 113（59%）of ICAO Member States have ratified the Montreal Convention.(4) A number of major States such as Bangladesh, Indonesia, Russia, Sri Lanka, Thailand, The Philippines and Vietnam have yet signed the Montreal Convention.(5)Based on such reality, how could a harmonized solution be formed?
More importantly, the exclusivity principle, created by the Warsaw and Montreal Conventions, has been eroded by national laws in response to passengers’claims. The exclusivity principle has also created complexities in making claims since the interpretation of the“certain rules”established by the Conventions is mainly subject to the judicial assessment. In terms of remedy for flight delays caused by force majeure, Article 20 of the Warsaw Convention and Article 19 of the Montreal Convention preclude air carriers from availing themselves of limited liability where air carriers can show that they had taken the necessary precautions to avoid the delays. Accordingly, air carriers try to avoid liability for compensating passengers in delays beyond their control, such as force majeure or extraordinary circumstance. Furthermore, due to no definition of“damage”under Article 19 of the Warsaw Convention, passengers borrow the case-law made for mental anguish associated with“bodily injury”specified in Article 17 of the Warsaw Convention to claim damage in flight delays. However, in practice, the remedy scheme for international flight delays caused by force majeure is in most cases subject to national laws instead of the Conventions. It is because of that, relying on the international legal framework, like the Conventions, to solve this particular issue is not realistic!
2.1 From Warsaw to Montreal
As their names imply, both the Warsaw and the Montreal Conventions attempted to unify“certain rules”relating to carriage by air, and apply to all international carriage of persons, luggage or goods performed by aircraft for reward.(6) Nevertheless, the Montreal Convention was aimed to modernize the Warsaw Convention so many concepts and principles remaining unchanged. For example, air carriers’liability only arises for delay, passengers’death and bodily injury caused by an accident onboard the aircraft in the course of embarking or disembarking.(7) The main changes however are related to liability limits and jurisdiction.
In short, two Conventions aimed to serve the needs for the passengers on international air journeys to receive similar compensation for certain claims whether such a claim was brought in Montreal or in Beijing. The“certain rules”eventually focused on air carriers’liability for passengers’death, bodily injury, and delay damage caused to passengers, luggage and cargo. For instance, Article 19 of the Warsaw and Montreal Conventions provides that an air carrier is liable for damage occasioned by delays in the carriage by air of passengers, luggage or goods. Accordingly, the compensation for flight delays should be governed by the Conventions; that is to say, air carriers’obligations should be the same if the flight is delayed in Montreal or in Beijing, or anywhere in the world.
Unfortunately, the experience from the author's own legal practice in handling severe passenger complaints shows that the Conventions provide limited scope for delay claims. Furthermore, it is evident that there is a diverse application of the Conventions and the remedy schemes when comparing jurisdictions in the West and in the East. Even the very basic question regarding whether or not the Conventions are applicable can be interpreted and answered disparately in different jurisdictions.(8) Consequently, the exclusivity of the Conventions is challenged by interpreting the application of the Conventions.
2.2 Exclusivity in the Warsaw Convention
It is worth mentioning that Article 23 of the Warsaw Convention nullifies certain abusive provisions in contracts of carriage.(9) Article 32 of the Warsaw Convention renders null and void any contractual provision infringing on rules of the Convention concerning the choice of law and the jurisdiction of the court. These two articles endorse the purpose of the Warsaw Convention to unify air carriers’limited liability in the Contracting States.
When damages are claimed under the Warsaw Convention, lawyers should first determine whether Article 24 is applicable.(10) This article states that air carriers’limited liability is restricted to actions brought to recover damages permitted under Articles 17,18 and 19 of the Warsaw Convention. Article 17 provides the rule of liability for passengers’death or bodily injury(11); Article 18 deals with liability for damages to and loss of baggage and cargo(12); and Article 19 covers damages for delays of passengers and goods(13). Article 24 sets up restrictions for the different types of claims, limitations of damages permitted, and the class of complainants who are allowed to sue.(14) The Warsaw Convention is applicable and is exclusive when claimants can prove that their claims fall into one of the three identified categories.(15) If the claims do not fit into one of the categories under Article 24, lawyers are then free to file suits under any recovery mechanism permitted by the applicable national laws.
2.3 Exclusivity in the Montreal Convention
The Montreal Convention was expected to achieve the objective of consolidating and modernizing the Warsaw System.(16) However, the same rule of exclusivity in the Warsaw Convention remedy remains under Article 29 of the Montreal Convention, which states that:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liabilities are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Comparing Article 29 of the Montreal Convention with Article 24 of the Warsaw Convention, the former has a clearer provision for exclusivity of the Convention's remedial regime. The Montreal Convention, however, recognizes that rights of suit outside of the Convention exist, but can only be taken subject to the conditions and limitations defined by Article 29.(17) Article 29 of the Montreal Convention clearly rejected the theory that the Convention is an exclusive code which excludes actions that do not arise under its terms. Nevertheless, it is important to affirm that the remedy is exclusive once the claimant has established that his or her claim falls within the Montreal Convention. Hence, the Montreal Convention continues to treat exclusivity with an“all or nothing”approach if the claimant decides to seek a remedy provided by it. In spite of the“all or nothing”approach, practitioners continue to refer to national laws to support claims against air carriers, aircraft manufacturers, air traffic controllers, and/or any other related parties, jointly or separately, who may be liable for damages caused by the accident.
In practice, claimants flying the same aircraft, therefore, can be compensated differently, under the Montreal Convention's“all or nothing”approach and based on the jurisdiction where they file their claims.(18) In addition to the scope of the uniform regime, claimants are able to claim for other compensation which is allowed under national laws, for instance, non-pecuniary compensation for mental anguish. As a result, an air carrier's obligation to compensate different passengers flying the same aircraft can be very different due to the judicial interpretation by national courts of the restrictions and strict terms of the Montreal Convention and of the existence of other causes of action under national laws. In the other words, the exclusivity principle is gradually eroded by national law in balancing passenger protection.
2.4 Flight Delay Remedy under the Conventions
Taking the flight delay remedy as example, the Montreal Convention provides detailed rules regarding air carriers’limited liability and unlimited liability for flight delay, and under Article 22（1）of the same Convention, it limits the liability of the carrier for delay to 4694 Special Drawing Rights（SDRs）for each passenger.(19) Article 22（5）of the Convention essentially expresses that this limit is not to apply if the damage results from an act or omission of the carrier, done with intent to cause damage or recklessly and with knowledge that damage would probably result. With regard to the type of damages, Article 29 of the Convention, headed“Basis of claims”, clearly indicates that: “punitive, exemplary or any other non-compensatory damages shall not be recoverable”. As a result of these rules, compensation claims for delay against air carriers are assumed to be comprehensively resolved by the Convention.
However，the current practical reality shows a contrasting situation.Article 19 is similar in both the Warsaw and the Montreal Conventions which provide that the carrier is liable for damage occasioned by delay in the air carriage of passengers.The Conventions，however，are silent in defining the scope of“damage”caused by delay in the carriage of passengers.In practice，passengers are liable for their“proven damage”and causation between damage and the time when passengers are entitled to expect the performance of the air carrier's duty and the time when the duties are actually performed.(20) The“damage”specified in Article 19，such as for mental anguish incurred from flight delay，is likely to be governed by national laws based on the unclear scope of damages under the Conventions.To be more specific，Articles 19 and 29 of the Montreal Convention jointly provide an opening for the claimant's lawyers to circumvent the Conventions’limited compensation if national laws allowed damages for“mental injury”（Chinese：精神损害）resulting from delays which are beyond air carriers’control.(21) Thus，this provides evidence that claims in each flight delay case，especially delays caused by force majeure，could be assessed in accordance with the national laws of the jurisdiction in which a case is heard.The air carrier can exonerate itself in certain circumstances where it had taken all the necessary precautions to avoid the delays，or where it had minimized monetary damages to passengers by offering complimentary services.The confusion between law and practice as well as the perceived shortcomings on the Conventions explain why consumer protection law and/or“delict”under the civil law system have been invoked by passengers and/or their lawyers to file non-pecuniary claims against air carriers.
3. Socio-economic and Cultural impacts on Claims for Force Majeure Delays
With the challenges of exclusivity of the Conventions in mind, the Conventions therefore hardly provide the exclusivity and harmonized legal framework governing air carriers’liability in the case of flight delays caused by force majeure. However, passengers suffer inconvenience and time loss during waiting periods. Passengers, therefore, ask whether“mental anguish”can be remedied under the permissible types of remedies for flight delays under the Conventions. Air carriers, on the other hand, may question whether the claims for“mental anguish”could follow the rule of exclusivity of the Conventions. In practice, socio-economic and cultural impacts on pecuniary and non-pecuniary claims for force majeure delays illustrate the complexities of applying the Conventions to form a harmonized solution to delay claims in the West and in the East.
From the comparative approaches under national laws，the United States（US）and the European Union（EU）best represent the Western socio-economic and cultural values，whereas Mainland China and Taiwan epitomize typical Eastern values.Furthermore，the concept of passenger protection is different in the US，the EU and Taiwan，which are distinct free market democracies，and from Mainland China，which has adopted the so-called“Socialism with Chinese characteristics.（Chinese：中国特色社会主义）”(22)The terms，“flight delays”and“force majeure”，expressed in the subject of this paper have no technical definition in aviation law.The ambiguity is raised not only because different languages are used to interpret air carriers’obligations in delays beyond their control，but also because distinct legislation allows air carriers to undertake different obligations to remedy passengers in flight delays caused by“force majeure”.
To begin discussing the claims for flight delays caused by force majeure, the comparative studies include:（1）the complex definitions of“flight delays”and“force majeure”in the selected jurisdictions; and（2）the uncertainty of passengers’claims for pecuniary and non-pecuniary remedies in the selected jurisdictions, to witness the socio-economic and cultural impacts on claims for force majeure delays. In the wake of that discussion, it is supported that relying on the international legal framework, like the Conventions or more national lawmaking to solve this particular issue, is not feasible.
3.1 Definitions for Flight Delays Caused by“Force Majeure”
Generally, in cases of force majeure in the rule of contract law, liability cannot be attributed or imposed for damage resulting from events beyond human control, including weather, natural disasters or other“acts of God”.(23) In terms of remedy for flight delays caused by force majeure, Article 20 of the Warsaw Convention and Article 19 of the Montreal Convention preclude air carriers from availing themselves of limited liability where air carriers can show that they had taken the necessary precautions to avoid the delays. Accordingly, air carriers try to avoid liability for compensating passengers in delays beyond their control, such as force majeure or extraordinary circumstance. However, due to no definition of“damage”under Article 19 of the Warsaw Convention, passengers tried to borrow the case-law made for mental anguish associated with“bodily injury”specified in Article 17 of the Warsaw Convention to claim damage in flight delays. As a result, the remedy scheme, including pecuniary and non-pecuniary claims, for international flight delays caused by force majeure is subject to national laws instead of the Conventions. Therefore, the definitions for flight delays caused by force majeure should be examined by national laws.
3.1.1 Notions of Flight Delays
A quick review of the selected four jurisdictions, the US, the EU, Mainland China and Taiwan, reveals that the notion of flight delays is not the same. For instance, the official notion of flight delays in Taiwan and in Mainland China is considered in relation to the scheduled flights’“departure time”or“arrival time”. Referring to Article 3 of the Taiwan Regulations Governing the Mediation of Disputes Arising from the Transportation between Civil Aviation Passengers and Aircraft Carriers, it is considered as“flight delay”should a flight be expected to be delayed for more than fifteen minutes in cases of domestic routes or for more than thirty minutes in cases of international routes. Under Article 3 of the Regulation Governing Flight On-time Management of Mainland China, it is considered as“flight delay”should a flight be delayed for more than fifteen minutes in reference to the scheduled flights’“departure time”or“arrival time”.
Compared to legislation in Taiwan and in Mainland China, the notions of flight delays in the EU and in the US are more complicated due to precedents that have been set by case law. In Sturgeon v. Condo(24), the European Court held that: “Regulation No. 261/2004 does not contain a definition of‘flight delay’. That concept may, however, be clarified in light of the context in which it occurs”. In addition, the Court clarified that:
It is clear furthermore from Article 6 of Regulation No 261/2004 that the Community legislature adopted a notion of‘flight delay’which is considered only by reference to the scheduled departure time and which implies as a consequence that, after the departure time, the other elements pertaining to the flight must remain unchanged. Thus, a flight is“delayed”for the purposes of Article 6 of Regulation No 261/2004 if it is operated in accordance with the original planning and if the actual departure time is later than the scheduled departure time.
It means that the notion of flight delay under the EU jurisdiction shall take into account the differences between the scheduled departure time and the actual departure time.
In the US, flight delay is interpreted by the court to mean“abnormal delay”(25). For instance, in Monhammed Jahanger v. Purolator Sky Courier(26), the US District Court for the Eastern District of Pennsylvania referred to Rene H. Mankiewicz's view,(27) and held that“the delay of one day was indeed‘abnormal’because it resulted from a weather-caused diversion of the carrier's airplane from its normal destination”.(28) In fact, the courts in the US common law jurisdiction seemed to have added to the confusion by creating a new definition for flight delays by adopting the concept of“abnormal delay”. Nevertheless, to establish the updated“Airline On-Time Statistics and Delay Causes”, the US Federal Aviation Administration（FAA）defines: “A flight is considered delayed when it arrived fifteen or more minutes later than the schedule.”(29)
3.1.2 Notions of Delays Caused by Force Majeure
The brief findings are that the US air carriers avoid their contractual liability for delays caused by“force majeure”which is subject to air carriers’conditions of carriage.The EU legislation uses“extraordinary circumstance”to mitigate air carriers’obligation for flight delays caused by unforeseeable factors，and the scope of“extraordinary circumstance”is determined by the Court of Justice of the European Union（the“CJEU”）.Furthermore，the Taiwan legislation aim is to stipulate that air carriers’liability to compensate passengers for their“necessary extra expense”through the delays caused by“不可抗力”（similar to“force majeure”）；yet，there is no clear definition for“force majeure”.Similar rule and practice are found in Mainland China.
3.1.2.1 Taiwan and Mainland China
To be more specific, in Taiwan, neither the Civil Code nor the Civil Aviation Act provides the definition of force majeure. By referring to Article 18 of the“Standard Contract for Domestic Air Passenger Transport”, the illustrated force majeure events include weather changes, mechanical failure, demands of competent authority or any other necessary factors.(30) Obviously, the regulatory view holds that mechanical failure is considered as force majeure, which is distinct from the legal opinion made by the CJEU. Furthermore, during the Chinese New Year holidays in 2019, China Airlines, Taiwan's main national air carrier, began cancelling flights following a strike staged by its pilots.(31) Lawmakers in Taiwan therefore proposed to include“strike”as an event of force majeure in order to provide/propose another legal ground for passengers to claim necessary expenses caused by flight delays under Article 91 paragraphs 2 and 3 of the Civil Aviation Act. The rationality behind it is that consumer protection should prevail over the industrial voices in present local practices.(32)
The notion of force majeure under the jurisdiction of Mainland China could refer to its national law. For instance, Article 184 of the Civil Aviation Act therefore provides that:
Where the provisions of an international treaty concluded or acceded to by the People's Republic of China are different from those of this Act, the provisions of that international treaty shall apply, except the provisions for which reservation has been declared by the People's Republic of China. In respect of cases, which are not provided by the law of the People's Republic of China or by the international treaties concluded or acceded to by the People's Republic of China, international practice may apply.
As a result, international treaties and practices governing air carriers’limited liability should prevail over domestic statutes if international elements are taken into account. Under Article 19 of the Montreal Convention, the air carrier is able to raise the defense of non-liability vis-à-vis passengers in delays if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures-in other words, force majeure. The same defense also is given by Article 107 of the General Principles of Civil Code(33) and Article 126 of the Civil Aviation Act.(34) There is no specific definition for force majeure that can be found under the Civil Aviation Act, but Article 153 of the General Principles of Civil Code indicates that“force majeure”means any objective conditions, which are unforeseeable, unavoidable and insurmountable. In practice, it is subject to a case-by-case review.
3.1.2.2 The US and the EU
In the US jurisdiction, 14 CFR 253.4（b）and（c）provide that air carriers are obligated to display the full text of their terms and conditions specified in their contract of carriage for public inspection at each of their airport and city ticket offices, and to provide, upon request and free of charge, by mail or other delivery services to passengers, a copy of the full text of the contract of carriage.(35) Based on 14 CFR 253.5（b）（5）, air carriers are obligated to indicate: “Rights of the carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate air carrier or aircraft, and rerouting.”In other words, given by the US national legislation, it is common practice that air carriers declare no liability for“force majeure”events; for instance, United Airlines（UA）expresses in its Rule 24 B（4）of the Contract of Carriage that“force majeure”events include:
a Any condition beyond UA's control including, but not limited to, meteorological or geological conditions, acts of God, riots, terrorist activities, civil commotions, embargoes, wars, hostilities, disturbances, or unsettled international conditions, either actual, anticipated, threatened or reported, or any delay, demand, circumstances, or requirement due directly or indirectly to such condition;
b Any strike, work stoppage, slowdown, lockout, or any other labor-related dispute involving or affecting UA's services;
c Any governmental regulation, demand or requirement;
d Any shortage of labor, fuel, or facilities of UA or others;
e Damage to UA's Aircraft or equipment caused by another party;
f Any emergency situation requiring immediate care or protection for a person or property; or
g Any event not reasonably foreseen, anticipated or predicted by UA.(36)
That is to say: the“weather”, “shortage of facilities”and any other events beyond UA's control are defined as“force majeure”in the UA Contract of Carriage. In so doing, American air carriers are able to defend for no contractual liability to compensate passengers’pecuniary and non-pecuniary claims resulting from force majeure delays.
The EU Regulation 261/2004 demands air carriers to shoulder compulsory obligations to offer free assistance to passengers in instances where delays are caused by“extraordinary circumstances”. The meaning of“extraordinary circumstances”is referred to in the Preamble（14）of Regulation 261/2004:
As under the Montreal Convention, obligations on operatingair carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.
According to a literal interpretation, the meaning of“extraordinary circumstances”is limited to:（1）political instability;（2）meteorological conditions; （3）security risks;（4）unexpected flight safety shortcomings; and（5）strikes. Furthermore, by referring to the Preamble（15）of Regulation 261/2004, the“extraordinary circumstances”should also include: “where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.”Undoubtedly, the definition given by the Preamble（15）opens a door to argue the extension of“extraordinary circumstances”since it is subject to the courts to determine the event in which delay could not have been avoided even if all reasonable measures had been taken.
However, by referring to the CJEU's case-law, the notion of“extraordinary circumstances”under Regulation 261/2004 may be inconsistent with“force majeure”in the US practice. That is to say, it is possible for US air carriers to successfully defend for not compensating passengers for inadequate services, but the same defensive strategy may not be applicable for the European air carriers in the EU territory. As mentioned, in Rule 24 B（4）d of UA's Contract of Carriage, “Any shortage of labor, fuel, or facilities of UA or others”can be considered as“force majeure”. Being contractual terms, UA is able to defense for no liability for delays caused by“technical maintenance”events. On contrast, the technical maintenance reason is not recognized by the CJEU to constitute a defense of“extraordinary circumstances”under Regulation 261/2004. For example, in the leading case, Wallentin-Hermann v Alitalia(37), after checking in, Mrs. Wallentin-Hermann and two other passenegrs were informed of their Alitalia flight cancellation five minutes before the scheduled departure time. They were redirected to another air carrier and they missed their connecting flight. The cancellation of the Alitalia flight was a result of a complex engine defect in the turbine which had been discovered the day before during a routine check. Alitalia had been informed of the defect during the night preceding that flight. Mrs. Wallentin-Hermann requested that Alitalia pay her €250 compensation pursuant to Articles 5（1）（c）and 7（1）of the Regulation 261/2004 due to the cancellation of her flight and also €10 for telephone charges. Alitalia rejected her request. The CJEU dismissed the air carrier's arguments and stated that“extraordinary circumstances”may be regarded as covering only circumstances which are not inherent to the normal exercise of the activity of the air carrier concerned and are beyond the actual control of that carrier on account of its nature or origin.(38) That is to say, the CJEU's ruling is generally understood to mean that the technical maintenance issue in Wallentin-Hermann did not constitute a defense of“extraordinary circumstances”.
3.1.3 Summary
Given the distinct interpretations of flight delay, it is obvious that the notion of flight delay has hardly been harmonized in national legislation and local practices. Again, the brief comparative studies related to notions of force majeure in the selected four jurisdictions conclude that flight delays caused by force majeure have hardly harmonized in local practices; accordingly, unification of air carriers’liability for flight delays through conventional lawmaking is not well grounded.
3.2 Air Carriers’Remedies in Delays Caused by Force Majeure
In the jurisdictions of Taiwan and Mainland China, the refusal of passengers to embark or disembark from an airplane illustrates passengers’dissatisfaction with air carriers’handling of force majeure delays. It is obvious to see the distinct expectation from air carriers and from passengers in remedies resulting from delays caused by force majeure. To meet passengers’expectations under the passenger protection stream in Taiwan and in Mainland China, some verdicts had been made in favor of passengers and this has caused inconsistencies with the national legislation. Such inconsistency is due to political sensitivities and socio-economic and cultural impacts, which are quite different from the strict adherence to the rule of law as observed in the US and the EU jurisdictions.
3.2.1 Taiwan and Mainland China
Taking the lawsuit case of Japan Asia Airways（JAA）as an example, fifty-three Taiwanese passengers refused to accept JAA's explanations for not providing hotel accommodation during their overnight stay at the Narita Airport in Tokyo due to a snowstorm. To express their anger at JAA's unsatisfactory services(39), fifty-three Taiwanese passengers framed their disregarded request for care as compensation for“mental anguish”that they suffered during the delays. They defined their claims as an infringement of their dignity under Article 227-1 of the Taiwan Civil Code. Additionally, the passengers sought monetary compensation equivalent to the services that JAA failed to provide to them, relying on Article 4 of the Regulations Governing the Mediation of Disputes Arising from the Transportation between Civil Aviation Passengers and Aircraft Carriers discussed above. As a result, each passenger claimed a total of NT$25,358（about US$818）, including NT$20,000（about US$645）for mental anguish and NT$5,358（about US$173）for meals, telephone calls, transportation and hotel accommodation.
JAA raised the defence that there was no infringement of passengers’dignity and that there was also no obligation on their part to compensate passengers for inadequate services under the Conventions. Regarding services, JAA argued that it did provide passengers with meals, beverage, pillows, and blankets, but that it could not find enough hotel rooms for 205 delayed passengers flying the EG-209 flight due to the snowstorm which was considered to be the heaviest snowfall in the past twenty years in the Tokyo area. JAA provided evidence to prove the difficulty of finding available hotel rooms: according to local news releases, there were more than 10,000 passengers staying in the airport terminals because of the snowstorm. More importantly, JAA emphasized that air carriers are not liable for services that are not available because of“local conditions”by referring to the exception provided by Article 4, paragraph 2 of the Taiwan Regulations Governing the Mediation of Disputes Arising from the Transportation between Civil Aviation Passengers and Aircraft Carriers.
In the judgment，the judge adopted a creative interpretation of what was called the air carriers’“subordinated obligation”（Chinese：附随义务）to provide services to passengers under“contract law”，which is a borrowed concept from“Schutzpflicht”（the State's duty of protection）under the German civil law.(40) Following the doctrine of subordinated liability，the judge held that passengers are entitled to be compensated an“equivalent amount”of the economic value of particular services which the air carrier failed to deliver to the passengers in case of a flight delay caused by force majeure .In other words，such compensation is considered as“a loss”resulting from the air carriers’breach of contractual obligations to protect passengers，and that involves infringement of passengers’dignity.The dignity here referred to is the subjective feeling of the passengers；in the JAA EG-209 case，passengers claimed that they felt embarrassed to sleep at the airport terminal surrounded by other passengers.In sum，the Taiwan judge justified her rationale to support the protection of Taiwanese passengers’dignity.It is interesting to note that passengers still filed the appeal against JAA after having the verdict partially made in their favour.Nevertheless，during the appeal，passengers decided to withdraw the appeal and settled with JAA mainly because passengers finally appreciated JAA's“respect”for Taiwanese passengers after private communications.(41)However，although this case is insufficient to form a“precedent”in Taiwan，it has deeply affected air carriers’handlings of passengers’claims in force majeure delays.This JAA EG-209 case provides an example to show how the judge granted what she considered as a“fair remedy”to Taiwanese passengers in force majeure delay by ignoring the“local conditions”specified in the CAA Regulation to balance passengers’protection and air carriers’risks.As a result，in case of delays caused by force majeure，air carriers operating in Taiwan are willing to settle disputes with passengers by offering passengers the“goodwill gesture”，which could be a small amount of cash or transportation credit coupons.After offering the“goodwill gesture”to passengers without arguing“right vs .liability”，the author has settled flight delay claims with more than one hundred Taiwanese passengers redress against international air carriers.During the settlement negotiations，Taiwanese passengers frequently addressed their“mental anguish”associated with discrimination of socio-economic and cultural impacts.
The same conclusion is also supported by the practices in Mainland China. The Civil Aviation Act of China provides no provision on air carriers being required to shoulder obligations of providing complimentary assistance or services for delays in international flights. However, the Consumer Protection Center of the Civil Aviation Administration of China（CAAC）clearly indicated that: Air carriers are obligated to provide affected passengers with information, such as refunding ticket fares or rerouting in flight delays, as well as rule of compensation. In addition, air carriers should assist passengers for their meals, beverage and accommodations at their cost in flight delays or cancellations resulting from mechanism break down, flight allocation and crew factors contributed by air carriers.(42) Passengers have to bear their own costs for meals, beverage and accommodations arranged by air carriers in case of delays caused by weather, emergencies, air traffic control, security checks and passenger's factors not contributed by air carriers.(43) Nevertheless, regardless of any reasons that cause flight delays in domestic air transportation, air carriers are obligated to offer passengers free meals, beverage and accommodations. That is to say, from the national legislation perspectives, air carriers are only waived for rendering free services to passengers in force majeure delays that happened to international flights with departures originating from Mainland China. In practice, the Guangxi Intermediate Court held the view that China Southern Airlines shall be liable for the passenger's economic loss resulting from delays caused by mechanical defects although China Southern Airlines had offered free meals, beverage, and accommodation.(44) The main reason is that China Southern Airlines failed to prove all reasonable measures had been taken to mitigate the affected passenger's loss while the regular rerouting was taken after China Southern Airlines was informed of the passenger's urgency of rerouting. The Shanghai Intermediate Court also granted a verdict in favor of the affected passenger to claim reasonable economic loss from China Eastern Airlines in force majeure delay for its lack of care of handling transfer flights. The rationality is that China Eastern Airlines shall be liable for the breach of trust given to the affected passenger for promised rerouting arrangements and then failed to honor that promise.(45) As a result, China Eastern Airlines shall be liable for compensating passengers for their claims resulting from air carrier's breach of care in force majeure delay; and, the compensation amount is inconsistent with the limited liability under the Montreal Convention.
3.2.2 The US and the EU
In both the US and the EU, the remedy mechanism for delays is provided for in three regimes:（1）for“international carriage”as defined under the Conventions,（2）for domestic flights under domestic statutes and（3）for international flights under domestic statutes.(46) In the US, however, the Conventions are applicable if the flights are considered“international carriage”as defined in the Conventions; otherwise, international or domestic flights are governed by the US statutes. Nevertheless, the interaction between the EU 261/2004 Regulation and the Conventions has been a challenging issue in the EU. In the remarkable case, IATA & ELFAA v Department of Transport,(47) the High Court of Justice decided to refer to the rules made by the CJEU for the questions relating to the validity of EU Regulation 261/2004.(48) As a result, air carriers cannot ignore their obligations to offer free assistances in the event of extraordinary circumstances even if all reasonable measures had been taken.
As given the above, air carriers are expected to undertake statutory“services”or“assistances”to passengers in force majeure delays regardless of monetary compensation involved in the US and the EU jurisdictions. The coming question is whether passengers are able to claim pecuniary or/and non-pecuniary compensation from air carriers due to unsatisfactory services during delay periods. Before the US Department of Transportation issued the“Tarmac Delay Rules”(49), in Biscone v JetBlue Airways Corporation,(50) the plaintiff boarded a JetBlue aircraft at Kennedy International Airport（JFK）on 14 February 2007 to Burbank, California, but the aircraft was grounded for eleven hours. During the first five hours, the plaintiff remained in her seat with her seat belt fastened because JetBlue's personnel stated that the weather was“holding us up”and that the aircraft could take off on five minutes’notice if passengers were seated. The plaintiff also alleged that JetBlue's personnel refused to allow any passengers to be released from the plane by stating that there will be no assistance given to passengers to get another flight and a prison sentence of twenty years if anyone tried to force their way off the aircraft. Also, during the confinement, passengers were served meager amounts of water, a few snacks after three hours had passed, and then again after a period of eight hours. In addition, after eight hours, the heating, cooling, and ventilation system was shut down. After ten hours, the captain informed passengers that the toilet tanks were full and they could not“do a No 2”because the tanks would overflow. After eleven hours, buses arrived and took passengers to the terminal, where they waited for another two hours to get their baggage. Approximately, 1,300 other passengers on JetBlue aircraft were similarly affected by JetBlue's actions at John F. Kennedy International Airport that day. Based on the alleged facts, the passengers’five causes of action against JetBlue included“false imprisonment”, “negligence and negligence per se”, “intentional inflictions of emotional distress”, “fraud and deceit”and“breach of contract”to recover damages resulting from a tarmac delay without food, water, clean air and toilet facilities. On the appeal, however, the passengers’claims were dismissed because they were based on a State tort law, which the court declared was preempted by the Airlines Deregulation Act of 1978（“ADA”）.(51)
In the EU, the closure of European airspace triggered by the Icelandic volcano eruption in 2010 is a good example(52) for remedy issue in flight delays which is beyond air carriers’control. In this particular flight delay, air carriers had disagreements on the implementation of unlimited complimentary assistance to“all”affected passengers that is required by the EU Regulation No. 261/2004(53), which had aimed for“high level”assistance and passenger protection. Under Articles 6 and 9 of Regulation 261/2004, passengers who are involuntarily denied boarding, or whose flights are cancelled or delayed, are entitled to free assistances, such as meals, refreshments, hotel accommodation, transport between the airport and the place of accommodation, and two free telephone calls, telex or fax messages or e-mails. In practice, European air carriers incorporate their regulatory obligations in their contract terms. In so doing, European air carriers not only declare their limited liability for delay damages specified in the Montreal Convention, but also clearly distinguish their obligations for offering assistance to passengers in cases of cancellation and delay within their contracts of carriage.(54) Referring to the conditions of carriage of the European air carrier, it shows that passengers flying different European air carriers may be offered slightly different assistance in long delays, including force majeure delays. For instance, Article 2c）of the General Conditions of Carriage of British Airlines（BA）specifies: “If these conditions of carriage are inconsistent with any tariffs or laws which apply to your contract of carriage with us, the tariffs or laws will apply”; yet, Article 2d）clarifies: “If these conditions of carriage are inconsistent with our regulations, these conditions of carriage will apply.”(55)That is to say, unless this EU Regulation 261/2004 provides more detailed rules for air carriers’obligations in case of cancellations or delays, BA's remedy mechanism specified in their General Conditions of Carriage has limited BA's contractual obligations to compensate passengers for delays. Clearly, BA attempts no compensation to passengers in force majeure delays beyond reimbursing, refunding, and rerouting plus required assistance, such as refreshments. Such distinctions illustrate how European air carriers form their own way to balance their regulatory obligation of protecting passengers. More significantly, however, air carriers’handlings confuse passengers who will make their claims for remedy if their flight connection is with a non-European air carrier and then a European air carrier, with long delays affecting both sides.
3.3 Summary
The brief comparative studies in the four selected jurisdictions illustrate that the notions of“flight delay”and of“force majeure”have hardly harmonized in national laws and local practices.
In terms of passengers’pecuniary claims and better services or apology（nonpecuniary claim）claims, in practice, the Conventions are eroded by national laws due to having no clear answers to their exclusivity principle. Accordingly, Taiwan and Mainland China place more weight on consumer protection in the booming aviation markets to balance passengers’expectation although the aviation legislation limit air carriers’liability in delays that are not contributed by the air carriers. In JAA EG-209 case, the judge recognized that passengers were aware of the air tickets specified application of the 1929 Warsaw Convention. Furthermore, the judge ignored JAA's arguments that there were no vacancies at the hotels; and, the judge held that the Taiwan Civil Code should be the governing law because passengers claimed for“dignity infringement”due to JAA's failure to offer hotel accommodations and left them to sleep at the airport terminal instead. In Mainland China, along with its booming economy, international air transportation grew with economic development along with severe flight delays at urban cities airports have caught people's attention to resolve this issue. The Shanghai Intermediate Court created the“philosophy of trust”as legal grounds for passengers’claims in force majeure delays. Briefly speaking, in Taiwan and Mainland China, the socioeconomic influences on passengers’claims for remedies mainly resulted from enhancing“consumer rights”.
In addition，most passengers’claims of a non-pecuniary nature are rooted in cultural values linked to“respect”or for failure to provide“expected services”.Should the law not offer satisfied solution in the Chinese society，there is a strong belief that“justice（or“law”）should be the last defense against moral responsibility”（Chinese：私法是最后一道防线）.That is to say：Under the Chinese traditions or cultural values，judges are expected to render“moral fairness”to the powerless in order to retrieve“mutual respect”between the strong and the weak.Accordingly，it is easier to understand why the Shanghai Intermediate Court applied the“breach of trust”for the passengers against China Eastern Airlines in force majeure delay；and，why the Taiwan judge held JAA's failure of implementing the duty of care as“infringement of dignity”.
On the contrary, in the West, dignity and human rights are related but are distinct concepts. Passengers are obligated to establish their grounds for claiming mental anguish resulting from force majeure delay, such as“torts”. In Biscone, however, the US Appeal Division dismissed passengers’claims under“torts”, against JetBlue based on their failure to provide food, water and facilities during a tarmac delay based on the preemption rules provided by the Airlines Deregulation Act. In the EU, Regulation 261/2004 provides: Where a flight is delayed by two, three or four hours-depending on the length of the flight-the air carrier is obliged to provide meals, refreshments, hotel accommodation, transport between the airport and place of accommodation as well as two telephone calls, telex or fax messages, or e-mails, which are the same as the rights and assistance for flight cancellation. Moreover, Preamble（22）of the Regulation 261/2004 also clarifies: “The supervision should not affect the rights of passengers and air carriers to seek legal redress from courts under the procedures of national law.”That is to say, passengers are able to directly establish causes of action under the Regulation against air carriers. Nevertheless, European air carriers restrict their regulatory obligations in their contract terms, including delay damages specified in the Montreal Convention and obligations for offering assistance to passengers in cases of cancellation and delay. Even with these uncertainties under the Conventions, in a free market, it is the passengers’choice of choosing which air carriers to fly with.
4. Conclusions
This paper examines the principle of exclusivity by way of limited liability in the Conventions while passenger protection demonstrates passengers’claims for pecuniary or non-pecuniary damages in flight delays in distinct jurisdictions. Making more laws or international conventions cannot guarantee an effective and unified solution for passengers’claims for flight delay because national law erodes the application of the Conventions in cause of passenger protection.
From the perspectives of socio-economic and cultural impacts on claims for force majeure delays, the courts of Taiwan and Mainland China has reflected inconsistencies between its own legislation and practice in response to passengers’protection. Although the EU Regulation 261/2004 proposal was to enhance“a high level of protection for passengers”, the European air carriers could still limit their obligations for offering complimentary services through their conditions of carriage since the same Regulation does not specify the rules for offering complimentary assistance. The same rule of law is found at the US legislation. The US CFR 523.4（b）and（c）provide that air carriers are obligated to display the full text of their terms and conditions specified in their contract of carriage. As a result, air carriers do display and inform passengers of contractual terms, but such terms also allow air carriers to have the flexibility of achieving their marketing strategies in a competitive market. Given the above, in assessing the approaches in the selected jurisdictions, the author argues that neither the unified rules under the international conventions on air carrier liability nor the developed national laws have been able to meet the expectations of passengers seeking effective and satisfactory remedies in situations where flight delays are caused by force majeure.
In conclusion, the author proposes that an innovative solution should be addressed to handle pecuniary or non-pecuniary claims resulting from flight delays. Such an innovative solution shall be free from the uncertainties and complexities in the current legal framework, and shall respect the different cultural diversities of the passengers in terms of no.
(1)柯莉娟博士专精航空及空间法（Air and Space Law），是第一位受领美国波音航空及空间法奖学金，在麦吉尔大学攻读航空及空间法法学博士学位的华人，目前是执业律师及东吴大学兼任助理教授。
本文引用柯博士所著《Remedies for Passengers for Flight Delays Caused by Force Majeure》博士论文之少部分内容并增修新资料。
(2)The 1929 Warsaw Convention, formally entitled the Convention for the Unification of Certain Rules Relating to International Carriage by Air, has evolved into one of the most important instruments of private international air law. The 1999 Montreal Convention, as the successor of the Warsaw Convention, formally entitled the Convention for the Unification of Certain Rules for International Carriage by Air, was signed on 28 May 1999 and came into force on 4 November 2003.
(3)The meaning of“force majeure”is referred to“an event or effect that can be neither anticipated nor controlled”. In addition, this term“includes both acts of nature（e. g., flood and hurricanes）and acts of people（e. g. riots, strikes, and wars）”.
See Black's Law Dictionary, 8th ed., sub verbo“force majeure”.
(4)See ICAO, “Current Lists of Parties to Multilateral Air Law Treaties”, online: ICAO Secretariat ＜http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf＞.
(5)Ibid.
(6)See Warsaw Convention, art. 1（1）; Montreal Convention, art. 1（1）.
(7)See Warsaw Convention, art. 17 and Montreal Convention, art. 17.
(8)This conclusion is made by the author from personal experience in the field, and the further cases discussed in this chapter are evidence to support the author's conclusion.
(9)Article 23 of the Warsaw Convention provides:
Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.
(10)Article 24 of the Warsaw Convention provides:
1. In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.
2. In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
(11)Article 17 of the Warsaw Convention provides:
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
(12)Article 18 of the Warsaw Convention provides:
1. The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air.
2. The carriage by air within the meaning of the preceding paragraph comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.
3. The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
(13)Article 19 of the Warsaw Convention provides:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.
(14)See Lawrence B. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook（The Netherlands: Kluwer Law International, 2000）at 143.
(15)Experts explained that if the Warsaw regime applies to the facts at issue, the Warsaw provides the exclusive grounds for relief. In case that Warsaw applies, and limits or precludes recovery, the plaintiff is without an alternative common law form of relief. See Paul Stephen Dempsey & Laurence E. Gesell, Air Commerce and the Law（Chandler, AZCoast Aire Publications, 2004）at 781-782.
(16)See Michael Milde, International Air Law and ICAO（Utrecht: Eleven International Publishing, 2008）at 283.
(17)See Alexander Ho, “Does the Montreal Convention 1999 Provide an Exclusive Remedy in the International Carriage of Goods and Passengers?”（2009）ⅩⅩⅩⅣ Annals of Air and Space Law 379, at 403.
(18)This result came from the author's legal practice in handling passengers’complaints against international air carriers in Taiwan. For instance, KLM provides direct flight between Taipei and Amsterdam. On the KL0807 flight from Amsterdam to Taipei, passengers buying their return tickets in Amsterdam should apply the Montreal Convention for their claims against KLM, but passengers buying their return tickets in Taipei are able to apply the Taiwan local law, the competent EU regulations or the Dutch law against KLM in Taiwan. Passengers flying KL0807, therefore, apply different laws against KLM, and KLM would bear different liability schemes for different passengers, depending on where the action is brought.
(19)The original Article 22（1）of the Convention limits the liability of the carrier for delay to 4150 SDRs. However, ICAO issued the Working Paper No C-WP/13342 on 22 May 2009 to conclude that the inflation factor had exceeded 10% in 2009, the threshold stipulated in Article 24（1）for adjustments of limits of liability, and that an upward revision of the limits was required. ICAO determined the inflation factor is 13.1%, resulting in an upward revision of 13.1% of the new limits of liability. Hence, the 4150 SDRs became 4694 SDRs.
(20)See Ruwantissa Abeyratne, “Aviation and Social Responsibility: Rights of Passengers”（2002）ⅩⅩⅦ Annual of Air and Space Law at 51.
(21)In spite of“personal injury”used in the US court cases, “Mental injury”has been used in Taiwan and in Mainland China for passengers to make their civil claims against air carriers under the national law in case of long flight delays.
(22)“Socialism with Chinese characteristics”was mentioned in the report at the Seventeenth National Congress of the Communist Party of China（CPC）.“The theoretical system of socialism with Chinese characteristics is a dynamic historical process and by now it has experienced three stages. Since the implementation of the reform and opening-up policy, it has become Chinese Marxism and expanded Marxism in three aspects of socialism, party and development.”
See Changsheng Rong, “Analyzing the Theoretical System of Socialism with Chinese Characteristics”（2009）Vol 5 No 10 Asian Social Science at 134.
(23)The“force majeure”clauses mean: “A contractual provision allocating the risk if performance becomes impossible or impracticable, esp. as a result of an event or effect that parties could not have anticipated or controlled.”
(24)Christopher Sturgeon, Gabriel Strurgeon and Alana Sturgeon v. Condor Flugdienst GmbH; Stefan Böck and Cornelia Lepuschitz v. Air France SA, Case C-402/07 and（C-432/07[2009]ECR I-10923）.
(25)See Paul S. Dempsey, Aviation Liability Law（Canada: LexisNexis Canada Inc., 2010）at §14.1; Christopher Nyholm Shawcross and Kenneth Macdonald Beaumont, Air Law, 4th Edition（Butterworh, 1977）at 410.
(26)See Monhammed Jahanger v. Purolator Sky Courier（1985）, CIV A No 83-4674, United States District Court, E. D. Pennsylvania.
(27)The court cited: “Given the inevitable hazards of air navigation, which the carrier's client cannot escape being aware of, many authors and some courts are of the opinion that‘delays’should be construed as meaning‘abnormal delays’, i. e., a delay resulting from the carrier's failure to take all appropriate measures to ensure departure and arrival of the aircraft at the times specifically specified or indicated in[the]timetable.”
(28)See Ibid.
(29)https://www.transtats.bts.gov/OT_Delay/OT_DelayCause1.asp
(30)Executive Yuan, online:
https://www.ey.gov.tw/Page/AABD2F12D8A6D561/7c161fb4-c4d2-45a1-ae6f-ab11d16c51cf.
(31)South China Morning Post, online:
https://www.scmp.com/news/china/society/article/2185337/pilots-taiwans-main-airline-threaten-strike-after-china-airlines.
(32)Executive Yuan, online:
https://lci.ly.gov.tw/LyLCEW/agenda1/02/pdf/09/07/05/LCEWA01_090705_00043.pdf.
(33)Article 107 of the General Principles of Civil Code provides:
There is no civil liability for not performing contract due to force majeure or for causing damage to others, unless otherwise provided by law.
(34)Article 126 of the Civil Aviation Act provides:
Air carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
(35)The full content of 14 CFR 253.4（b）and（c）shows:
（b）Each air carrier shall make the full text of each term that it incorporates by reference in a contract of carriage available for public inspection at each of its airport and city ticket offices.
（c）Each air carrier shall provide free of charge by mail or other delivery services to passengers, upon their request, a copy of the full text of its terms incorporated by reference in the contract. Each carrier shall keep available at all times, free of charge, at all locations where its tickets are sold within the United States information sufficient to enable passengers to order the full text of such terms.
(36)United Airlines, Legal Information, online:
＜https://www.united.com/ual/en/us/fly/contract-of-carriage.html#tcm: 76-6643＞.
See also United Airlines, Contract of Carriage, online:
＜http://www.united.com/web/format/pdf/Contract_of_Carriage.pdf＞.
(37)Wallentin-Hermann v. Alitalia Lines Aeree Italian, SpA, Case C-549/07[2008]ECR I-11061 online: ＜http://curia.europa.eu/juris/liste.jsf?&num=C-549/07＞.
(38)The Court pointed out that air carriers are confronted as a matter of course in the exercise of their activity with various technical problems to which the operation of those aircraft inevitably gives rise. The resolution of a technical problem which comes to light during aircraft maintenance or is caused by failure to maintain an aircraft must therefore be regarded as inherent in the normal exercise of an air carrier's activity and cannot therefore constitute as such an“extraordinary circumstance”within the meaning of Article 5（3）of Regulation 261/2004.
See European Commission Legal Services, Summaries of Important Judgment C-549/07 Wallentin-Hermann v. Alitalia, Judgment of 22 December 2008, online: ＜http://ec.europa.eu/dgs/legal_services/arrets/07c549_en.pdf＞.
(39)In this case, the author represented JAA and argued that there was no liability to compensate passengers for unsatisfactory services because“local conditions”made it impossible to provide the services. Surprisingly, in this particular case, the judge concluded that JAA should compensate the fifty-three Taiwanese passengers with the equivalent value for the free meals and accommodation in which JAA failed to provide to the passengers during the 15 hours delay. That is to say, the judge held that air carriers’“amenities”（services）had turned into“obligations”and gave rise to a“remedy”in the event that air carriers failed to provide satisfactory services to passengers.
(40)“Schutzpflicht”means the contractor's obligation for offering protection to the other party during the performance of main contractual obligation. See Tseng Shin-long, Analysis of Compensation Law,（Taipei: San Min Book Co. Ltd., 2003）at 775.
(41)Based on the ethic rules, the author is not allowed to release detailed information in this regard.
(42)http://www.caacca.cn/hlzn/bzchb/201903/t20190322_7027.html
(43)See Article 60（4）of the Regulations for International Air Transportation of Passengers and Baggage.
(44)Huavl. com, online: https://www.66law.cn/laws/321374.aspx.
(45)Ibid, https://www.66law.cn/laws/321374.aspx.
(46)See Section 2.2 of this paper. The“international carriage”is defined in Article 1（2）of the Conventions. If a flight, in addition to domestic flight, does not fall within the definition of“international carriage”, it is called“international flight”in practice.
(47)IATA & ELFA v Department of Transport, C-344/04, [2006]online:
＜http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 62004CJ0344&from=EN＞.
(48)The main questions to be clarified by CJEU are:
“（1）Whether Article 6 of Regulation No 261/2004 is invalid on grounds that it is inconsistent with the... Montreal Convention..., and in particular Articles 19,22 and 29[thereof], and whether this（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（2）Whether the amendment of Article 5 of the Regulation during consideration of the draft text by the Conciliation Committee was done in a manner that is inconsistent with the procedural requirements provided for in Article 251 EC and, if so, whether Article 5 of the Regulation is invalid and, if so, whether this（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（3）Whether Articles 5 and 6 of Regulation No 261/2004（or part thereof）are invalid on grounds that they are inconsistent with the principle of legal certainty, and if so whether this invalidity（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（4）Whether Articles 5 and 6 of Regulation No 261/2004（or part thereof）are invalid on grounds that they are not supported by any or any adequate reasoning, and if so whether this invalidity（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（5）Whether Articles 5 and 6 of Regulation No 261/2004（or part thereof）are invalid on grounds that they are inconsistent with the principle of proportionality required of any Community measure, and if so whether this invalidity（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（6）Whether Articles 5 and 6 of Regulation No 261/2004（or part thereof）are invalid on grounds that they discriminate, in particular, against the members of the second Claimant organization in a manner that is arbitrary or not objectively justified, and if so whether this invalidity（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（7）Is Article 7 of the Regulation（or part thereof）void or invalid on grounds that the imposition of a fixed liability in the event of flight cancellation for reasons that are not covered by the extraordinary circumstances defence is discriminatory, fails to meet the standards of proportionality required of any Community measure, or is not based on any adequate reasoning, and if so whether this invalidity（in conjunction with any other relevant factors）affects the validity of the Regulation as a whole?
（8）In circumstances where a national court has granted permission to bring a claim in that national court, which raises questions as to the validity of provisions of a Community instrument and which it considers is arguable and not unfounded, are there any principles of Community law in connection with any test or threshold which the national court should apply when deciding under[the second paragraph of Article 234]EC whether to refer those questions of validity to the[Court of Justice of the European Communities]?”
See IATA & ELFA v Department of Transport, C-344/04, [2006], para. 20.
(49)See DOT online: https://www.transportation.gov/individuals/aviation-consumer-protection/tarmac-delays
(50)Biscone v JetBlue Airways Corporation 2012 NY Slip Op 09019[103 AD3d 158]
(51)The Federal Aviation Act of 1958（“FAA”）did not expressly preempt State regulation and contained a“saving clause”. In 1978, Congress amended the FAA by enacting the ADA and expressed the preemption provision as“related to a price, route, or service”. That is to say, the claims related to“service”should be preempted under the ADA, which is aimed to ensure economic deregulation of the airline industry.
(52)Volcanic ash from Iceland snarled air traffic across Europe causing the cancellation of thousands of flights. The disruption caused havoc for air travel around the world since volcanic ash can cause jet engines to shut down. The plumes have closed some of Europe's busiest airports, including Charles de Gaulle in Paris, London's Heathrow and Schiphol in Amsterdam. France, Germany, Ireland, Sweden, Norway, Belgium, Denmark, Poland and the Netherlands also announced the complete or partial closure of their airspace.
See ICAO, ICAO Assesses Situation of Air Transport Following Eruption of EYJAFJALLAJOKULL VOLCANO in Iceland（May 2010）, online: ICAO Newsroom ＜http://www.icao.int/Newsroom/Pages/icao-assesses-situation-of-air-transport-following-eruption-of-EYJAFJALLAJOKULL-volcano-in-iceland.aspx＞.
(53)The Regulation（EC）No 261/2004 of the European Parliament and of the Council on 11 February 2004（hereinafter referred to as the EU Regulation 261/2004 or EU 261/2004）, which came into force on 17 February 2005, provided significant principles and guidelines for compensation and offering various assistance to passengers in the event of denied boarding, cancellation and long delays. This Regulation repealed the Regulation（EEC）No 295/91（Text with EEA relevance）-Commission Statement, online:
＜http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 32004R0261: EN: HTML＞.
(54)The term, “assistance”, is quoted from the EU Regulation 261/2004, which aims to establish common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. However, in this paper, the assistance shares the same meaning of“services”which have been adopted by the legislation of the US, Taiwan and Mainland China. In addition, Article 9 of the EU Regulation 261/2004 identifies the required assistance as“Right to care”. Substantially, it is air carriers to undertake the obligations to provide assistance to delayed passengers.
(55)The quoted content is:
2）Differences between these conditions of carriage and tariffs and laws
If these conditions of carriage are inconsistent with any tariffs or laws which apply to your contract of carriage with us, the tariffs or laws will apply.
2d）Differences between these conditions of carriage and our regulations
If these conditions of carriage are inconsistent with our regulations, these conditions of carriage will apply.
See British Airways, “General Conditions of Carriage”online:
＜http://www.britishairways.com/en-ca/information/legal/british-airways/general-conditions-of-carriage＞.