In a case where Gap et al. started with Eul et al. operating air transport business with Eul et al. as an aircraft belonging to Eul et al., and entered into an international air transport agreement to arrive at the Incheon International Airport on the same day, and entered into an airport in accordance with a schedule of departure, and sought damages against Eul et al. for damages against Eul et al., due to the delay in the departure of aircraft at least eight hours in waiting at the airport, the case holding that Eul et al. is liable for the mental damages suffered by Gap et al. on the ground that it was insufficient to recognize that Eul delayed the departure of aircraft for more than eight hours than the originally scheduled departure time, and that Eul et al did not take any measures

It is a case where Gap et al. started with Eul et al. operating air transport business and Eul company's aircraft to enter Incheon International Airport and entered into an international air transport contract and entered into an airport in accordance with the schedule of departure with the contents of arrival at the Republic of the Philippines's flag provision port on the same day, and sought damages against Eul et al. who suffered damages, such as waiting at the airport for at least eight hours during the departure of aircraft.

The case holding that the above international air transport contract is a party to the Montreal Convention for the Unification of Certain Rules Relating to International Air Transport (hereinafter “the Montreal Convention”), so the Montreal Convention takes precedence over the Commercial Act or the Civil Act, which is the applicable law. Since the aircraft has delayed for more than eight hours than the originally scheduled departure time, the company “B” under Article 19 of the Montreal Convention, barring special circumstances, is liable for damages suffered by its passengers, etc., and that the transfer time of the above aircraft would be delayed for more than two hours in order, and that the Incheon International Airport Departure time would be delayed again for more than six hours due to the use control of the runway provided by the blade, and the company “B” could have sufficiently predicted the fact that the aircraft would have been delayed for more than seven hours without any notice to Party A, etc., and thus, the company could not reasonably be held liable for damages due to mental harm, such as delayed arrival or physical damage from the first scheduled departure time to Party A, and thus, it could not be reasonably acknowledged that the company “A” did not have any other specific liability to avoid mental harm due to Party A, etc.

Articles 17 and 19 of the Convention on the Unification of Certain Rules for International Carriage by Air, Article 751 of the Civil Act

Plaintiff 1 and 49 others (the plaintiff 16 and 17 are minors, and the plaintiff 14, the mother 15, the plaintiff 20, and the plaintiff 21 are minors, and the legal representative 18, the mother 19, and the plaintiff 30 are minors, and since the non-party 1, the mother 29, and the plaintiff 41 are minors, the legal representative 2, the mother 39, and the plaintiff 44 are minors. Since the legal representative 3, the mother 42, and the plaintiff 46 are minors, the legal representative 4, the mother 45, and the plaintiff 48 are the legal representative , and therefore the legal representative 5, the mother 5, and the mother 47 are the legal representative , and thus the legal representative 5 and the plaintiff 47 are the legal representative , the legal representative 5 and the plaintiff 47 (limited).

Philippines Asian Co., Ltd. (Attorney Seo-ok et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2018Gaso32922 decided October 11, 2018

June 5, 2019

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiffs 50 million won and each of the above amounts with 5% interest per annum from January 29, 2018 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding thereto are dismissed.

1. Basic facts

A. The Defendant is a company operating air transport business under the trade name of “○○○○○○○”.

B. On December 29, 2017, at around 06:55, the Plaintiffs entered into an international air transport contract with the Defendant, starting from the △ △ △ △ △ Maeng Aircraft (hereinafter “instant aircraft”) with the Defendant, around 10:15 on the same day (in the case of the Republic of Korea, at around 10:15 (in the case of local time of the Philippines) (the Plaintiff 49 and only 50 million won depart from the Incheon International Airport, and entered into a transport contract with the intention of arriving at the knuri International Airport as an intermediate landing area). The rest of the Plaintiffs, starting from the Incheon International Airport, entered into a transport contract with the schedule of return to the Incheon International Airport as an intermediate landing area).

C. On December 29, 2017, around 15:13 on the same day after approximately 8 hours and 18 minutes elapsed from around 06:5, which was the initial scheduled departure time, the aircraft entered the Incheon International Airport at around 15:13 on the same day, and around 8:30 minutes elapsed from around 10:15 on the same day, which was the initial scheduled arrival time, at around 18:45 on the same day.

D. The Plaintiffs, despite having known of the delay of the departure of the instant aircraft, arrived at the Incheon State of Supply in line with the scheduled departure time, waiting at the said airport for at least eight hours due to the delay of departure.

(e)the Montreal Convention;

The relevant provisions of the Montreal Convention on the Unification of Certain Rules for International Carriage by Air (hereinafter referred to as the " Montreal Convention") in connection with the International Air Transport Contracts are as follows:

(1) A carrier shall be liable only when an accident resulting from death or injury on the aircraft, or in the course of boarding and unloading, of the damage incurred in the event of death or bodily injury of a passenger, as stated in the section 17 of the table contained in the main sentence. (2) A carrier shall be liable only when an accident resulting in the destruction, loss, or damage of a checked baggage occurred on the aircraft or during the course of the carriage of passengers, cargo, or cargo under the control of a carrier. (hereinafter omitted) A delayed carrier under Article 19 shall be liable only when an accident resulting in the destruction, loss, or damage of a checked baggage occurred on the aircraft or during the course of the carriage of the carriage of the cargo by passengers, cargo, or cargo. Nevertheless, the carrier shall not be liable if it proves that the carrier, his/her employee, or his/her agent, took any and all measures reasonably required to avoid such damage, or was unable to take such measures.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Acts and subordinate statutes applicable to this case.

The international air transport agreement that the plaintiffs concluded with the defendant is that the place of departure is the Republic of Korea, the place of destination is the Republic of Korea, or both the place of departure and the place of destination are the Republic of Korea, and the place of departure and the place of destination are both parties to the Montreal Convention, so the Montreal Convention is preferentially applied to the Commercial Act or the Civil Act, which is the applicable

3. Determination as to the occurrence of liability for damages

A. Liability for damages caused by the delay of the aircraft of this case

As seen in the above facts, the aircraft of this case began to be delayed more than eight hours than the originally scheduled departure time, and thus, pursuant to Article 19 of the Montreal Convention, the defendant is liable to compensate the plaintiffs, who are passengers of the aircraft of this case, for the damages suffered by them, unless there are special circumstances.

B. Whether the Montreal Convention has been discharged in accordance with the latter part of Article 19

1) The defendant's assertion

The aircraft of this case completed the preparation for departure from the Incheon International Airport at around 02:41 on January 29, 2018, which was the first scheduled departure time, due to the cumulative delay in the front line airport. However, since the blade International Airport cannot use the runway due to the runway asphalt work from 03:0 to 09:00 on the local time, it was possible to start at around 09:19 on the same day, and it was delayed arrival at the Incheon International Airport and delayed arrival at the above airport. As such, the aircraft of this case was delayed due to the delay in permission for air traffic control and the situation of the provision of the blades. In addition, the Defendant is not liable for the delay to the Defendant, by providing the Plaintiffs with compensation for the delayed delay within 30 days, and the Defendant can not use it within 9:0 days from the total amount of compensation for the damages to the Plaintiffs, such as the alteration of the right to use it within the limit of 9:30 days from the date of the delay.

2) Determination

A) According to the respective descriptions of evidence Nos. 2 and 3 and the purport of the whole pleadings, the following facts can be acknowledged:

(1) The aircraft of this case was originally scheduled to be operated as described in the “the starting schedule” column in the following table, but its arrival time was delayed in order due to the same cause as described in the “the cause for delay” column, and the arrival time was delayed as described in the “the time for delay in arrival standard” column (the time described in the following table is the local time at the place of departure or destination, respectively).

. Place of temporary arrival of 20: 13: 5 Mana 20 Mana 28, 2018. 28. 20 : 20 1. 18 : 20 Mana 20 : 15 Mana 20 : 15 : 20 Mana 14: 15 on January 28, 2018. 15: 15: 15: 20 Mana 2018. 17: 10 19: 20 Mara 28. 28. 20 Mana 28. 18. 20 Mana 28. 18. 20 Mana 28. 198 Mana 2018. 1. 1. 28. 2018. 1. 28. 2018

(2) From January 5, 2018 to March 6, 2018, the Canadian International Airport controlled the use of each runway from January 5, 2018 to March 09:00 to 09:00 of the local time of the Philippines in the case of gold Day, and from September 5, 2018, the use of each runway from 05:0 to 09:00 of the local time of the Philippines in the case of Sundays.

(3) On January 29, 2018, the aircraft of this case completed the maintenance of the high-level control system at the knife flag station provision port around 02:41, but on the same day, 03:00 (on the local time of Korea, 04:00 on the same day) through (2) the use of the runway was controlled, and failed to take off.

(4) On January 29, 2018, the Defendant notified the Plaintiffs of the departure time of the aircraft at around 05:14, by e-mail, that the aircraft was changed to 14:45.

B) In light of the above facts, as seen above, the Defendant’s schedule of this case was planned to start immediately after the arrival of the aircraft after the minimum time required for maintenance and boarding of passengers, and it was inevitable to delay the air time later. ② The aircraft of this case began to start on January 28, 2018 through delay in order from 14:00 of its local time to 21:00 of its own day, and there was no additional delay in air time for 2 hours or more than 3:0 of its own time to 4:0 of its own time to 2:0 of its own time after it was anticipated that the Defendant could not reasonably delay the departure time of the aircraft of this case from 2:3:0 of its own time to 4:0 of its own time to 2:3:0 of its own time-to- 4:0 of its own time-to- 0:0 of its own time-to- 2:0 of its own time-to- 4:0 of its own time-to- 20,014:

3) Therefore, the defendant's assertion of immunity is without merit.

4. Determination on the scope of liability for damages

A. The plaintiffs claim that the defendant should compensate for mental damage suffered by the plaintiffs due to the delay of the aircraft of this case pursuant to Article 751 of the Civil Code, and the defendant does not recognize only the economic damage compensation and also the compensation for mental damage. The plaintiffs asserted that the defendant does not bear any liability for damages, since the plaintiff did not prove any economic damage.

B. Unlike Article 17 of the Montreal Convention, Article 19 of the Montreal Convention, which provides for the liability of passengers for damages caused by the death or physical injury of passengers on board the aircraft, does not stipulate the specific type of the damage, namely, whether or not to compensate for the physical damage or whether or not to compensate for the mental damage, even though the Montreal Convention provides for the liability of passengers for damages caused by the delay in air transport. Accordingly, the Civil Act of the Republic of Korea, which is the applicable law, shall apply to matters not covered by Article 19 of the Montreal Convention.

C. As to the instant case, it can be sufficiently recognized in light of the empirical rule that the Plaintiffs, who are passengers, wait at the airport for more than eight hours, and suffered mental distress due to inevitable changes in the travel schedule, due to the delay in the aircraft in this case, and such mental distress cannot be deemed to have been simply recovered due to the change in the aviation schedule or refund of the air cost, etc. Therefore, the Defendant is liable to compensate for mental distress suffered by the Plaintiffs pursuant to Article 751

Furthermore, in relation to the amount of consolation money, the plaintiffs were waiting at the Incheon Airport for more than eight hours, and the defendant knew that the aircraft of this case was not departing from the knife provision port around 05:00 on January 29, 2018 when the plaintiffs issued the right to board the aircraft of this case, and that the aircraft of this case can start at 09:00 on which the runway control is released. Thus, even though it was well aware that the aircraft of this case will start a delay for more than nine hours, it is reasonable to determine consolation money for each plaintiff as KRW 300,00 for each plaintiff, in light of the circumstances such as the defendant's failure to notify the plaintiffs of the delay time in detail, thereby depriving the plaintiffs of the opportunity to use other flights, allowing the plaintiffs to wait for a long time at the airport, and causing obstacles to the overall travel schedule.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs the consolation money of KRW 300,00 per annum from January 29, 2018 to October 11, 2018, which is the date the court of first instance rendered a significant decision, for disputes as to the scope of the defendant's obligation to perform this case, 5% per annum as stipulated in the Civil Act, and to pay damages for delay calculated at the rate of 15% per annum as stipulated in the main sentence of Article 3 (1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings and the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment (amended by Presidential Decree No. 29768, May 21, 2019).

Therefore, the plaintiffs' claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal against the plaintiffs is dismissed as it is without merit.

Judges Yang Chang-chul (Presiding Judge)