2018Na2993 Compensation (as referred to in this paragraph)

A and 49 persons

[Defendant-Appellant] The Doz. (Law Firm LLC, Attorney Kim Hy-young, Counsel for defendant-appellant)

A person shall be appointed.

Attorney Song Jin-ok and Dun-han, Counsel for defendant

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

June 5, 2019

July 3, 2019

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

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The Defendant’s lawsuit of this case against each of the Plaintiffs 500,000 won and each of the above amounts from January 29, 2018

5% per annum and 15% per annum from the next day to the date of complete payment until the date of service of a duplicate of the Chapter

Korea shall pay the same amount of money.

2. Purport of appeal

The part against the defendant among the judgment of the first instance is revoked, and the plaintiffs' claim corresponding to that part is accepted.

Both are dismissed.

1. Basic facts

A. The defendant is a company that operates air transport business under the trade name of "C".

B. On December 29, 2017, the Plaintiffs entered into an international air transport contract with the Defendant, starting from around 5:10 on December 29, 2017 with the Z2037 Z2037 Aircraft belonging to the Defendant (hereinafter referred to as the “aircraft”). At around 10:15 on the same day, the Plaintiffs entered into an international air transport contract with the intent to arrive at the port of the Republic of Incheon (on-site time in the Philippines), at around 15:5 (hereinafter referred to as the “instant contract”). Plaintiff D and E entered into a transport contract with the intention to arrive at the port of the Republic of Canadian at the Incheon International Airport after departing from the Incheon International Airport, and the rest of the Plaintiffs entered into a transport contract with the schedule of return to the Incheon International Airport after departing from all of the Incheon International Airport to the port of landing.)

C. On December 29, 2017, when around 8 hours and 18 minutes have elapsed from around 55 to around 15:13, the instant aircraft entered the Incheon International Airport at around 15:10 on the same day as each other at the time of the initial scheduled arrival, and around 10:10 on the same day after about 8 hours and 30 minutes have elapsed from around 15 to around 45.

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. In relation to the Montreal Convention for the Unification of Certain Rules Relating to the International Carriage Convention (hereinafter referred to as the "Convention for the Unification of Certain Rules for the International Carriage by Air"), the relevant provisions are as follows. Article 17 of the Montreal Convention (hereinafter referred to as "the Montreal Convention") provides that the carrier shall be liable only when an accident causing death or injury has occurred on board or in the course of boarding or getting out of the aircraft with respect to the loss of, or damage to, the caused by the destruction or loss of, the checked baggage occurred on the aircraft or during the course of the carriage by air. (2) The carrier shall be liable only when the accident causing the destruction or damage of, or in the course of the carriage by air has occurred on board the aircraft or during the course of the carriage by passengers or the carriage of the baggage by passengers. Notwithstanding the foregoing, the carrier shall not be held liable for the damage due to the delay in the carriage by air including the number of its employees or his/her agents, and shall not be held liable for any dispute as to whether there has been any reasonable ground to set forth Gap evidence or any action required to avoid such damage.

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 law

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 starts with a delay of not less than eight hours more than the originally scheduled departure time, and 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

On January 29, 2018, 200: 02:41 on the same day as the beginning time of the original scheduled at the knife provision port due to the cumulative delay in the front line airport. However, the knife International Airport cannot use the runway due to the runway asphalt operation from 03:0 to 09:00 on the same day, so the aircraft in question delayed arrival at the Incheon National Airport and delayed arrival at the above airport at 09:19 on the same day, and delayed arrival at the above airport. As such, the aircraft in question was delayed due to the delay in permission for air traffic control and the reasons of the provision of the knife station provision, the Defendant is not liable for the delay to the Defendant on the ground that there was no delay in the arrival of the aircraft in e-mail to the Plaintiffs, and there was no change in the right to compensation for damages to the Plaintiffs within 30 days after the alteration of the right to compensation for the damages to the Defendant.

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

(1) The aircraft of this case was originally scheduled to be operated as described in the column of ‘the initial schedule’ among the following table, but its arrival time was delayed in order due to the same reasons as described in the column of ‘the cause for delay', and it was delayed as described in the column of ‘the time for delay in arrival' (the time described in the table below is the local time at the place of departure or destination respectively).

(2) From January 5, 2018 to March 6, 2018, an international airport in the Republic of Korea has been under the control of the use of each runway from 05 to 09:0 on the local time of the Philippines in the case of the Philippines from 03:0 to 09:0 on the local time of the Philippines in the case of Giday, and from 05:0 to 00:0 on the local time of the Philippines in the case of Sundays.

(3) On January 29, 2018: (a) around 41, 2018, the instant aircraft completed the maintenance of the high-level control system at a knife station provision port; (b) on the same day: 03:0 (from 04:0 on the same day as Korean local time) to 00 (from 04:0 on the same day), the use of the runway was controlled, and failed to take off, as described in the foregoing (b). (d) The Defendant notified the Plaintiffs of the fact that the departure time of the aircraft was changed to 14:45 on January 29, 2018 at Korea: 14.

B) In light of the above facts, the schedule of the instant aircraft determined by the Defendant, as seen above, was planned to start immediately after the elapse of the minimum time required for maintenance and passenger boarding after the arrival of the aircraft, and it was inevitable to delay the air transit time in order. ② The instant aircraft began to delay its scheduled flights from January 14, 2018 to January 21, 2018 on the same day, and came to a delay of 2 hours or more, and the Defendant did not notify the Plaintiffs that it would have been 2 hours or more, even if it was sufficiently anticipated that the departure time at the Incheon State’s port of supply would have been delayed by 10 hours or more at that time, (3) the aircraft used from 03:00 on the date of the blade International Aviation to 200 hours on January 29, 2018, but it did not seem to have been controlled by the Plaintiffs during 20 hours or more from the point of view that it could have been controlled by the aircraft at that time more than 20 hours or more than 4 hours on January 20, 201.

28. 23: (a) around 53: (b) it was clearly foreseeable that the aircraft of this case arrived at a knife International Airport 2:43 minutes delayed, and that it did not give any notice of the delay departure to the plaintiffs; (c) the defendant sent e-mail from 06:5 to 05 minutes prior to the originally scheduled departure time of the aircraft of this case, which only sent the plaintiffs a notice of the delay of the aircraft of this case to the plaintiffs at about 1:30 minutes prior to the beginning time of the aircraft of this case, and it is not possible to promptly confirm it. In light of the circumstances such as the evidence and assertion submitted by the defendant, it is insufficient to find that the defendant did not take any measures reasonably required to avoid damages to the plaintiffs or could not take such measures, and there is no other evidence to acknowledge it.

3) Therefore, the Defendant’s assertion of immunity is without merit.

4. Determination on the scope of liability for damages

A. The plaintiffs asserted that the defendant should compensate for mental damage suffered by the plaintiffs due to the delay of the aircraft in this case pursuant to Article 751 of the Civil Code. The defendant does not recognize only the economic damage compensation and recognize the compensation for mental damage. The plaintiffs asserted to the purport that the defendant does not bear any liability for damages since they 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, i.e., whether or not the damage is compensated for physical damage or whether or not the damage is compensated for mental damage. 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, waiting in the airport for more than eight hours, and suffered mental suffering due to inevitable changes in the travel schedule, due to the delay in the aircraft in this case, and such mental suffering 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 the Plaintiffs for mental suffering.

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 did not depart from the knuri International Airport on January 29, 2018 when the plaintiffs issued the right to embark on the aircraft of this case and could depart from about 09:0 when the runway control is cancelled, it is reasonable to determine consolation money for each plaintiff as KRW 300,000 per each.

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs 300,00 won as consolation money due to the delay of the aircraft of this case and damages for delay calculated at the rate of 15% per annum from January 29, 2018 to October 11, 2018, which is the date when the court of first instance rendered a significant decision that disputes over the scope of the defendant's obligation to perform this case, and at the rate of interest under 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 following 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 Sung-soo

Judges Kim Jong-jin

Judges Nos. 300