Decisions of the courts with the airline victory. The Supreme Court dismissed the "victory" appeal on carry-on luggage. "Victory" lost: passengers will continue to take fur coats and bouquets on the plane
MOSCOW, 7 August. /TASS/. The Supreme Court (SC) of Russia rejected the claim of the Pobeda airline, which demands to partially cancel the rules for the carriage of hand luggage, which allow a passenger to take flowers, a backpack, a handbag and some other things into the cabin in excess of the norm of 5 kg, a TASS correspondent reports.
"To deny the airline's claim," the court's decision reads. The defendants in the lawsuit were the Ministry of Justice and the Ministry of Transport.
Pobeda CEO Andrei Kalmykov and attorney Genrikh Padva said the airline will appeal the decision. "Of course, we will appeal this decision, because we see the impracticability of such rules," Kalmykov said. "But if the decision comes into force, then after the appeal we will be forced to revise our rules." According to him, "the schedule for the turnover of aircraft will change," which will lead to an increase in ticket prices.
According to the lawyer, the company will appeal against the decision of the court in the court of appeal.
background
Litigation in the case began in the spring. The airline, after changing the legislation on the carriage of hand luggage and introducing a mandatory free carriage of at least 5 kg of baggage, introduced its own rules: they are not tied to the weight of the baggage, but they limit the dimensions to 36x30x27 centimeters in three dimensions.
In April, Pobeda lost a lawsuit with the prosecutor's office on the issue of compliance with clause 135 of the Federal Aviation Rules. According to this clause, passengers, in addition to the established free baggage allowance, can take a handbag, a backpack, a bouquet of flowers, baby food, outerwear, a suit in a suitcase, medicines, a device for carrying a child, canes, crutches on board as hand luggage. , walkers, wheelchairs, rollators and items purchased from duty free shops. In May, Pobeda filed a lawsuit with the Supreme Court of the Russian Federation demanding that the new rules for carrying hand luggage on airplanes, which were adopted in the fall of 2017, be partially invalidated.
"Victory" asked to remove a handbag, a backpack, a bouquet of flowers, a suit in a suitcase from the list of free items for transportation, leaving all other items on the list. At the same time, a bag, backpack and other things are allowed for free transportation if they correspond to the dimensions specified by the company. The Ministry of Transport, however, insisted on postponing the consideration of the case. According to its representatives, the department is now developing another bill that will transfer the entire list from FAP-135 to FAP-133.
Positions of the parties
In court, in addition to Kalmykov and Padva, the head of the legal department Alexei Tankevich spoke on the side of Pobeda. The airline motivated its claim by the fact that the permission to carry excess hand luggage threatens the safety of passengers.
During the court session, representatives of Pobeda, for clarity, while explaining their demands for the abolition of free transportation of some items, demonstrated a calibrator for determining the dimensions of luggage. Kalmykov, proving the position of the company, explained that the low-cost airline ordered a special study from Boeing (TASS has a copy), in which the manufacturer came to the conclusion that for the safe transportation of 189 passengers on board (the maximum load of the Pobeda aircraft), each passenger can put on the top shelf one piece of hand luggage measuring 36x30x27 cm in three dimensions.
At the same time, Kalmykov noted, Pobeda cannot ask a passenger to remove hand luggage under the seat in front: the layout of the aircraft is as dense as possible and there is only room for the passenger's legs under the seat. "The design of our particular aircraft is such that the layout of the aircraft is made with maximum density in mind. We use the so-called thin seats to carry as many passengers as possible. The space for legroom is 29 inches. There is very little, so there is some or there is no place to place hand luggage downstairs," he said.
Kalmykov also added that, under the existing rules, he cannot ensure the safety of passengers. Moreover, during the meeting, Kalmykov said that the current requirements for hand luggage were developed without taking into account the passenger capacity of aircraft and their types. According to him, now the requirements are the same for narrow-body aircraft and wide-body long-haul aircraft.
In turn, the lawyers of the Ministry of Transport told the court that the rules were developed in agreement with the airline and taking into account the complaints of passengers. "When permitting the transportation of a list of things in excess of the norm, it was taken into account that some things cannot be weighed, while others are essential items during the flight," the lawyer said.
The Prosecutor General's Office supported the Ministry of Transport in court, considering that the disputed paragraph of the rules complied with the law. The decision of the court has not yet entered into force and can be appealed.
Punishing passengers for wanting to save on ticket prices. As it turns out, these carrier quirks are in irresolvable conflict with Federal Aviation Regulations dated 10.10.2007 , and back in February, Rostransnadzor ordered Aeroflot's daughter to eliminate violations. The airline appealed to the Moscow Arbitration Court, where yesterday the case was considered on the merits.
Believe it or not, but this trial, like all previous ones, Pobeda lost outright. The arbitrator Ekaterina Aksyonova upheld all the points of the instructions of the supervisory authority. This means that Pobeda is obliged to start feeding passengers on board its flights and stop demanding additional payment from them for backpacks and women's bags as separate pieces of luggage.
Unfortunately, the issue of rudeness of the airline's attendants to passengers was not considered (although Rostransnadzor receives complaints about this).
Does yesterday's court decision mean that Pobeda will change its boorish ways in the future? Previous experience does not give us the slightest grounds for such an optimistic forecast. As I already wrote, the policy of Aeroflot's daughter in this matter is principled and completely conscious. And although Pobeda does not spare money for lawyers, challenging every order of supervisory authorities in arbitration courts of three instances, it is in no hurry to enforce court decisions on its own claims. The first report on an administrative violation in connection with the illegal collection of fees from passengers for hand luggage was drawn up in relation to Pobeda on May 7 2015 of the year. Decision on the guilt of "Victory" in committing an offense, responsibility for which is provided for in Part 1 of Art. 14.8 Code of Administrative Offenses of the Russian Federation, issued on June 2 2015 (with reference to the same p. 135 Federal Aviation Regulations on free hand luggage allowance). The Arbitration Court of Moscow, where Pobeda appealed this decision, on November 2 2015 Years in the claim of the airline refused, confirming the decision on her guilt. Having not achieved success in the first instance, the airline immediately filed an appeal, lost again, sent a cassation complaint to the Arbitration of the Moscow District - and lost the case for the third time, having exhausted all the possibilities of judicial challenge. Since then, 5 months have passed, but Pobeda has not yet scratched its head to bring its baggage allowances into line with current federal legislation.
The logic here is exactly the same one that Ilya Varlamov clearly explained in his post: during the air transportation, the passenger does not have any rights. Neither those that are prescribed in federal laws, nor those that he allegedly received by purchasing a ticket. He may be required to pay an additional fee at any time, he may not be allowed on the plane or removed from the flight if he refuses to pay an illegal fee (as happened with member of the Public Chamber Dmitry Chugunov, on whose complaint Rostransnadzor issued its February order).
There are exactly two cures for this disease: legal and market. For example, in the United States, a passenger can file a lawsuit against the airline, recovering from it not only moral damages, but also punitive damages for crew misconduct. For example, US citizen Samantha Carrington, who was removed from the flight by flight attendants and handed over to the FBI on trumped-up suspicion of "terrorism", 2006 sued Southwest Airlines for a year 2,5 million dollars in moral damages and 25 million fine, the whole purpose of which is to wean the airline from abusing the lack of rights of passengers on board. I know nothing about such verdicts in Russia.
The market cure lies in the banal competition between air carriers. If google passenger reviews about Pobeda Airlines, then the very first link, without going to any site, we will see its eloquent consumer rating: 2,25 on a five-point scale, based on reviews 10.240 passengers (purely for comparison: Aeroflot has 4,3 points based on 31.743 responses). Positive feedback about Pobeda comes mainly from such Platon Karataevs, who had read horrors about this carrier the day before, transferred things from a backpack to a briefcase, prepaid all additional services, and as a result, their flight went well, which they were pleasantly surprised. It is clear that with such a reputation with the carrier, any passenger who has the opportunity to choose will refuse the disastrous services of Pobeda. But this, as I already explained, is part of the idea of the parent company. Low-cost airline passengers are deliberately taught that there is no such thing as a cheap service of high quality. And neither Rostransnadzor nor the Moscow Arbitration Court can do anything about it.
The appeal obliged Pobeda to change the rules for carrying hand luggage. The Court of Appeal concluded that the airline has no right to charge a passenger additional money for baggage weighing less than 10 kg carried in the cabin. However, Pobeda will continue to challenge this decision, as it believes that the ticket price includes only a limited set of things that can be carried without additional payment.
The Ninth Arbitration Court of Appeal upheld the decision of the previous instance, according to which the Pobeda low-cost airline (part of the Aeroflot group) is obliged to change the list of things from hand luggage that the passenger has the right to carry without additional payment.
The reason for the litigation, which started at the beginning of the year, was the inspection of Rostransnadzor on the basis of an appeal from State Duma deputy Alena Arshinova. The deputy said that the representative of the airline ordered her to pay 2 thousand rubles. for the carriage in the cabin of the aircraft "handbag in the form of a backpack" weighing up to 9 kg. But the defendant stated that the Federal Aviation Regulations (FAR) require free transportation of only a limited set of items, including handbags and briefcases, and nothing was said about "backpacks in the FAR." In addition, the legislation does not clearly specify restrictions on weight and size, the company insists. Therefore, based on the rules of the Pobeda, now only the possibility of carrying up to 10 kg of baggage is included in the price of a low-cost airline ticket, provided that it is checked in as baggage and not carried on board the aircraft. Otherwise, for each piece of luggage in the cabin, you need to pay from 999 rubles. up to 2 thousand rubles (€25-35 for international flights).
Judge Yekaterina Aksyonova, who heard the case before the court of first instance, commenting on the applicant's words, described the difference between a handbag and a small backpack as a "game of wording". She also clarified that at the entrance to the cabin of the aircraft, Mrs. Arshinova had only a “backpack” in her hands. The court pointed out in the decision that “having established such a type of baggage as a “lady's handbag” included in the carriage, Pobeda reserved the right to decide what type of handbag fits or does not fit this definition, which is unacceptable and contrary to the FAR.”
The press service of Pobeda told Kommersant that they would continue to challenge this decision.
Note that the rules of one of the largest European low-cost airlines - the British airline EasyJet - do not limit the weight of hand luggage if it meets certain dimensions and the passenger is able to place it on the luggage rack without assistance. The Irish low-cost airline Ryanair includes two pieces of hand luggage of certain dimensions in the ticket price, the weight of one must not exceed 10 kg.
Elizaveta Kuznetsova
How Pobeda announced the introduction of fees for the transport of duty-free goods
Low-cost airline Pobeda (part of the Aeroflot group) announced in November 2015 the introduction of fees for carrying Duty Free packages on international flights. The cost of the service averaged 700 rubles. Meanwhile, the conditions for transporting Pobeda raised questions from Rospotrebnadzor.
Why "Victory" is not expected in Europe
Pobeda, a subsidiary of Aeroflot, faced difficulties in entering foreign routes in July. The German Lufthansa blocked the idea of Pobeda to sell cheap integrated Fly & Bus tickets with the delivery of passengers to Zurich, and in Innsbruck, Austria, the low-cost airline did not get slots from Austrian Airlines. The fears of competitors are justified: after the start of Pobeda's flights to Bergamo, Alitalia stopped flights from there to Moscow. However, Pobeda has similar difficulties in Russia: the development of domestic routes carries the risks of competition with other airlines of the Aeroflot group.
Illustration: Pravo.ru/Petr Kozlov
The Supreme Court considered the claim of Pobeda Airlines. The low-cost airline of the Aeroflot group demanded that the item of the rules for the carriage of hand luggage be declared illegal, obliging the carrier to take on board things in excess of the norm of 5 kg - backpacks, handbags, bouquets and suits in a suitcase. Passengers abuse, the norms were adopted without taking into account the technical characteristics of the aircraft, and there is simply nowhere to put things in the cabin, representatives of the carrier insisted.
The essence of the dispute
The defendants in the dispute were the Ministry of Transport and the Ministry of Justice. The company demanded that clause 135 of the General Rules for the Air Transportation of Passengers, Baggage and Cargo, approved by order of the Ministry of Transport in October 2017, be declared illegal. The disputed item contains a list of items that can be taken on board in excess of the free carry-on baggage allowance, which today is 5 kg. The list included a backpack, a handbag, a bouquet of flowers, outerwear, baby food for a child during the flight, a suit in a suitcase, a device for carrying a child, medicines in the amount necessary for the flight, special crutches, canes, walkers, rollators and others. rehabilitation equipment, a collapsible wheelchair and duty free items. Everything, with the exception of "socially significant items" - medicines, baby food, carriers and medical equipment - should not be transported free of charge, Pobeda believes.
is the minimum weight of hand luggage for a flight passenger. The rest is designated as hand luggage "excess".
The position of the applicants, who, in addition to representatives of the air carrier itself, was represented in court by lawyer Genrikh Padva, was that the Ministry of Transport unlawfully intruded into the sphere of legal regulation of the Air Code and arbitrarily established the obligation of the carrier to accept things in excess of the free hand luggage allowance established by paragraphs. 2.1 p. 2 art. 106 VK and p. 133 FAP-82. Such an obligation is not provided for by federal law, representatives of Pobeda insisted.
In addition, they drew the court's attention to the fact that the disputed point contradicts paragraph 133 of the same rules. The carrier has mutually exclusive obligations: on the one hand, he must carry hand luggage, the weight and dimensions of which allow it to be safely placed in the cabin (clause 133 of FAR-82), on the other hand, to accept items additional to hand luggage without taking into account their weight, dimensions and the ability to place them safely - with the exception of a backpack (clause 135 of FAP-82), despite the fact that, taking into account the dimensions of the aircraft, this is impossible.
Ministry of Transport expanded the norm
Meanwhile, a week before the hearing of the case, the Ministry of Transport decided to finally resolve the issue of hand luggage and submitted a bill proposing to change paragraph 133 of the FAP. According to the bill, the text of which is published on the official portal of regulatory legal acts, it is proposed to completely eliminate the weighing of items that can be taken on board in excess of hand luggage (in excess of the 5 kg prescribed by law), including women's handbags, briefcases, bouquets of flowers, etc. d.
In other words, it is proposed to exclude the free transportation of bags, briefcases and other things from paragraph 135 of the FAR as "excess" transportation and make the transportation of these items part of this free allowance for the carrier.
It is also proposed not to include the weight of a backpack, packed goods from duty free and devices for carrying a child (cradle, car seats for children under 2 years old, strollers, etc.) in the free carry-on baggage allowance. At the same time, the carrier can limit the weight and dimensions of these things so that they can be safely placed in the cabin. So they have to be weighed. According to the current version of the rules, with a hand luggage allowance of at least 5 kg, there are no exceptions when weighing.
CUT FOR OVERBOOKING
proposed by the Ministry of Transport. Fines are proposed to be collected in favor of passengers. The ministry refused to legalize overbooking.
Representatives of the Ministry of Transport petitioned to postpone the consideration of the case, referring to the fact that the draft law, directly related to the disputed provisions, is under consideration. But the presiding judge rejected the motion, agreeing with the prosecutor and the applicant that this did not change the disputed circumstances in any way.
Three fur coats and a sizeless handbag
During the meeting, the applicants again stated their position. They emphasized: 106 of the VC states that passengers are entitled to free carry-on baggage within the limits, which is established by the carrier in accordance with the FAR, approved on the basis of the requirements of the operational documentation of the aircraft. Most of the questions were caused by the approval of the requirements.
The representative of the airline, CEO Andrey Kalmykov, stressed that no one took into account the characteristics of their aircraft, although the standards for carry-on luggage proposed by Pobeda are based on the recommendation presented by Boeing: things can only be placed on shelves, but not under seats, and excess baggage allowances will affect both the safety and comfort of passengers. The Ministry of Transport said that the harmonization of the requirements was carried out by a working group, including carriers and passengers, and proceeded from the "average parameters" of the aircraft. At the same time, the norms for hand luggage were drawn up, taking into account the fact that things can be put on the luggage racks and under the seat in front. There is no such possibility in Pobeda aircraft. The judge's question about how the FAR should be applied to Pobeda, taking into account the balance of interests of the parties, remained unanswered.
Only you have problems, other carriers have no complaints, - representatives of the Ministry of Transport pointed out.
Only we have such a dense layout of the aircraft, - Andrey Kalmykov objected.
"We proceeded from the fact that some things cannot be weighed, but they may be needed on the flight, before or after, a bouquet - for romantics, outerwear - to run to the gangway in cold weather<...>", - explained the representative of the Ministry of Transport and emphasized that the decision on the list of compulsory subjects is collegial.
But in "Victory" they did not think so. Representatives of Pobeda offered to refuse the bouquet, citing a possible allergy of passengers. "Passengers should warn about health problems in advance," the representative of the Ministry of Transport objected.
One of the most important criteria of a legislative act is certainty. It had to be formulated in such a way that it could be interpreted unambiguously. P. 135 FPA can be interpreted as you like.<...>If we talk about the balance of passenger convenience and traffic safety, the priority is safety, and it is not observed under these standards. This rule is harmful to both the carrier and citizens.
Heinrich Padva, lawyer
Also, Pobeda complained that the size of a handbag or briefcase is not regulated anywhere, in a bag the size of which is not inferior to a luggage bag, you can carry a lot of clothes, and there is no way to control this, and the item regarding the free transportation of outerwear leads to abuse, for example on Italian flights. "Passengers are carrying three fur coats, referring to the fact that these are outerwear," Kalmykov was indignant. The issue of outerwear caused a heated discussion: the representative of the airline had to explain separately: no one will take into account the clothes that are on the passenger: no one weighs them anyway. “If it’s a passenger’s clothes, no one is against it, but today’s standards allow you to carry additional things. We are in favor of establishing clear and understandable rules. And for socially significant things, we have a separate shelf, and if the place is over, we will transport everything to cargo compartment, the passenger must notify about it 24 hours in advance," Andrey Kalmykov assured the court.
The Ministry of Transport said that they had encountered the problem of additional outerwear for the first time and were "ready for dialogue."
To nullify abuses from all sides is an impossible task, all issues that arise in practice must be resolved by the participants in the situation, - the representative of the Ministry of Transport noted.
Why not indicate in the FAP that it is necessary to proceed from the carrier's norms? The carrier needs at least minimal tools to control hand luggage, objected in Pobeda.
The representative of the Ministry of Justice supported the position of the Ministry of Transport, while recognizing that the requirements of the FAP should be developed in accordance with Art. 106 VK.
Nevertheless, after listening to the arguments of the parties, he refused to satisfy the requirements of Pobeda. Genrikh Padva said that Pobeda would probably challenge the Supreme Court's decision. Andrey Kalmykov, CEO of the airline, said that if the decision still comes into force, the airline will have to look for a way out, for example, place hand luggage "in excess" in baggage, since there is no physical possibility to place it on the shelves - this is unsafe. As a result, this may affect the cost of air tickets.
The low-cost airline demanded to cancel the norm on the free transportation of handbags.
On Tuesday, the Supreme Court considered a lawsuit filed by low-cost airline Pobeda against the Ministry of Transport: the airline demanded to cancel the paragraph of federal aviation rules on free transportation, in addition to hand luggage (minimum 5 kg per passenger), handbags, briefcases, suitcases, bouquets of flowers, outerwear and backpacks.
This clause imposes unlimited obligations on airlines, Pobeda believes. The rules of the low-cost airline are different: everything that fits in a 36x30x27 cm calibrator can be taken into the cabin for free, such luggage, according to Boeing, is placed on the luggage racks of a Boeing 737-800 aircraft (Pobeda has 20 of them) in a configuration for 189 passengers, said in court, the general director of Pobeda Andrey Kalmykov. The rest must be checked in and paid for.
The prosecutor's office requires Pobeda to comply with federal rules and carry all items from the list in the cabin for free.
Kalmykov and Pobeda's lawyer Aleksey Tankevich brought a calibrator and samples of things from the mandatory list to the court to show that the rules are unenforceable: it is impossible to place them in the cabin of a low-cost airline without violating safety requirements. The layout of the seats is as tight as possible, the seats are thin, there is no place for things under them, Kalmykov assured. And Tankevich warned that flowers are a strong allergen, and there is a limited amount of air in the plane.
Pobeda hired lawyer Heinrich Padva for the process, his fee is up to 40,000 rubles. per hour of work. The disputed paragraph does not limit the size and weight of additional items, and therefore contradicts another paragraph of the rules, which gives the right to carry free hand luggage that fits into the calibrator, Padva said. It often happens that the passengers who entered first fill the luggage racks, Padva argued, and the next ones simply have nowhere to put things, they are forced to hold them on their hands, with any turbulence, things will fly around the cabin. It is not clear why the Ministry of Transport does not agree with this, the lawyer concluded.
If you follow the rules, then Pobeda will have to send things to baggage during landing, which will increase the turnaround time of aircraft by at least 30%, Kalmykov wrote to the Minister of Transport Yevgeny Dietrich in July: this destroys the low-cost airline business model and will force Pobeda to develop as a classic airline with applicable fares.
Things from the contested list are hard to weigh, but they are needed for a comfortable flight, and therefore they were appointed above the norm, Svetlana Tonkikh, a representative of the Ministry of Transport, said in court.
The Air Code requires that the performance characteristics of aircraft be taken into account when drawing up the rules for transporting things in the cabin, Kalmykov said, and asked if the Ministry of Transport took into account the characteristics of the Boeing 737-800 specifically? Judge Yuri Ivannikov asked the same question. Representatives of the Ministry of Transport Tonkikh and Ekaterina Sukharnikova avoided answering this question several times, but in the end Sukharnikova said that they took into account, but not specific types, but all aircraft. “From An-2 to Boeing 747,” Kalmykov quipped. Officials said the Air Code's requirement to take aircraft characteristics into account was a technical error. “This is your opinion,” Kalmykov objected, “but the Air Code has absolute priority over federal aviation regulations.”
Judge Yuri Ivannikov asked the representatives of the Ministry of Transport for a long time where to transport things in the cabin if they do not fit on the shelves? How to avoid that passengers do not abuse this rule and do not violate the rights of other passengers to space on the shelves? It can be placed on the shelves, Sukharnikova kept saying, and disputed domestic issues can somehow be resolved on the spot. But how should the carrier place things if there is no space, the judge did not lag behind. There is always room on the luggage racks, the official did not give up.
The course of the process seemed to be developing in favor of the low-cost airline, but judge Ivannikov, returning from the deliberation room, announced that he had denied Pobeda's claim.
The decision will come into force after the preparation of the motivational part. Kalmykov said that it would be appealed to the appellate board of the Supreme Court.
