Elderly Man Accidentally Drowned during Package Tour

 2018-02-26   (2017) No. 0003

Mr. Chen accidentally drowned in the swimming spot at the beach when traveling outbound with his familyfriends. His family brought the travel agency to court, claiming compensation for the losses totaling RMB 900,000 yuan. Recently, changning District Peoples Court of Shanghai rendered the first-instance judgment ruling that the travel agency shall bear 30% of the compensation for the accident, that is, it shall compensate Chen’s family RMB 270,000+ yuan.

In the late summer early autumn of 2014, Mr. Chen, who was over 60 years old, took a package tour to Thailand with his wife friends. On the fourth day, they came to koh larn island where Mr. Chen, fond of swimming, swam in the area designated by the island manager with his friend. The friend went ashore after a while, leaving Mr. Chen swimming alone in the sea. Shortly afterward, word came that someone drowned. The tour leader immediately inquired about his tourists found Mr. Chen missing. Upon immediate checking with the beach manager, it turned out that the drowner was Mr. Chen, who had been sent to a local hospital for treatment by then. Two days later, the hospital announced that Mr. Chen died of respiratory blood circulatory system failure. 

In October 2016, Chen’s family sued to changning district peoples court of shanghai, claiming for compensation for the death of Mr. Chen and other losses from the travel agency totaling RMB 902,000 yuan. they believed that Mr. Chens accidental drowning in the tour was because the travel agency failed to perform its statutoryagreed duties of providing personal safety tips, safeguardsrescue. The agency shall be liable for compensation. 

The travel agency disagreed with the plaintiffs claim in that: 1. it had performed the duty of giving safety warning via the tips in the travel contractsite reminding 2. the water in the swimming spot involved was 1.5m deep only without complex circumstancesfree of security vulnerabilities 3. it had fulfilled its duties during rescueaftercare 4. Mr. Chen could swim but drowned accidentally, perhaps because of his own physical capabilitynegligence. 

After trial, changning district peoples court of shanghai made the first-instance judgment ruling that the defendant (travel agency) shall bear 30% of the compensation for the accident, that is, it shall compensate chens family RMB 270,000+ yuan. 

The court held that the defendant had stated safety tips in the travel contract on possible risks during the tourreminded the tourists of safety matters in the agenda. however, there are inadequacies in the tour arrangement, careemergency rescue for tourists over 60 years old such as Mr. Chen. after Mr. Chen drowned in the small swimming spot, the travel agency staff failed to perceive the occurrence of the accident promptly but inquired about the tourists in a rush. had they taken better care of elderly tourists in their activitiesimplement the safety measures in a more humanized way, the risk would have be reduced. based on these grounds, the travel agency was negligent in performing the contractshall bear corresponding liability for breach of contract.

Mr. Chen was capable of swimmingknew about his swimming skill well he should be aware of his exercise limit as the sports ability would be weakened over the age. in view of the wave effect on swimming in the sea and exercise intensity greater than that in the swimming pool, Mr. Chen should swim per his own physicalthe site conditions. given that the water area involved was not complicated,the accident could happen due to unexpected factors, including the swimmers overconfidence, Mr. Chen shall also be liable for the accident. 

i. Contract Law of the Peoples Republic of China

Article 8 a lawfully established contract shall be legally binding on the parties thereto, each of whom shall perform its own obligations in accordance with the terms of the contract,no party shall unilaterally modifyterminate the contract.

The contract established according to law is protected by law.

Article 60 each party shall fully perform its own obligations as agreed upon.

The parties shall abide by the principle of good faith, and perform obligations of notification, assistance,confidentiality, etc. in accordance with the naturepurpose of the contractthe transaction practice.

Article 107 if a party fails to perform its obligations under a contract,its performance fails to satisfy the terms of the contract, it shall bear the liabilities for breach of contract such as to continue to perform its obligations, to take remedial measures,to compensate for the losses incurred thereby.

ii. interpretation of the supreme peoples court of some issues concerning the application of law for the trial of cases on compensation for personal injury

Article 29 compensation for death shall be calculated on the basis of 20 years per capita disposable income of urban residentsper capita net income of rural residents in the previous year where the court of appeal is located. but for those over sixty years of age, one year shall be decreased for each additional year of agefor those above seventy-five years of age, it shall be calculated on the basis of five years.

 (written by: Zhang Weicong, Minhang District People’s Court of Shanghai)