The court's decision is a victory for the airline. Pobeda lost: passengers will continue to take fur coats and bouquets on the plane. The Supreme Court rejected the appeal of the “victory” on hand luggage

Illustration: Pravo.ru/Petr Kozlov

Supreme Court considered the claim of Pobeda Airlines. The low-cost airline of the Aeroflot group demanded that a clause in the transportation rules be declared illegal hand luggage, obliging the carrier to accept on board items in excess of the 5 kg limit - backpacks, handbags, bouquets and suits in a suitcase. Passengers are being abused, regulations were adopted without taking into account technical characteristics aircraft, and there was simply nowhere to put things in the cabin, representatives of the carrier insisted.

The essence of the dispute

The respondents in the dispute were the Ministry of Transport and the Ministry of Justice. The company demanded that clause 135 be declared illegal General rules air transportation of passengers, baggage and cargo, approved by order of the Ministry of Transport in October 2017. The disputed clause contains a list of items that can be taken on board in excess of the free hand luggage limit, 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, medications in the amount necessary for the flight, special crutches, canes, walkers, rollators and others rehabilitation equipment, a folding wheelchair and goods purchased in duty free. Everything, with the exception of “socially significant items” - medicines, baby food, carrying 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 "excess" carry-on baggage.

The position of the applicants, who, in addition to representatives of the air carrier itself, were represented in court by lawyer Genrikh Padva, was that the Ministry of Transport unlawfully invaded the sphere legal regulation Air Code and arbitrarily established the carrier’s obligation to accept items in excess of the free carry-on baggage allowance established by paragraphs. 2.1 clause 2 art. 106 VK and clause 133 FAP-82. Such an obligation is not provided for by federal law, Pobeda representatives insisted.

In addition, they drew the court’s attention to the fact that the contested paragraph contradicts paragraph 133 of the same rules. The carrier has mutually exclusive responsibilities: 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 FAP-82), on the other hand, he must accept items additional to hand luggage without taking into account their weight and dimensions and the ability to place them safely - with the exception of a backpack (clause 135 of FAP-82), despite the fact that given the dimensions of the aircraft this is impossible.

The Ministry of Transport has expanded the norm

Meanwhile, a week before the consideration of the case, the Ministry of Transport decided to finally resolve the issue of hand luggage and presented a bill proposing to change clause 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 addition to hand luggage (exceeding the 5 kg provided by law), including women's handbags, briefcases, bouquets of flowers, etc. d.

In other words, it is proposed to exclude the free carriage of bags, briefcases and other things from clause 135 of the FAP as carriage “in excess of the norm” and make the transportation of these items part of this free norm for the carrier.

The free carry-on baggage allowance also does not include the weight of a backpack, packaged goods from duty free and devices for carrying a child (baby cradle, car seat for children under 2 years old, strollers, etc.). At the same time, the carrier can limit the weight and dimensions of these items so that they can be safely placed in the cabin. So they will have to be weighed. According to the current version of the rules, if the carry-on baggage allowance is at least 5 kg, there are no exceptions for weighing.

PENALT FOR OVERBOOKING

suggested by the Ministry of Transport. It is proposed to collect fines in favor of passengers. The ministry refused to legalize overbooking.

Representatives of the Ministry of Transport petitioned to postpone the consideration of the case, citing the fact that the bill directly related to the contested provisions was under consideration. But the presiding judge rejected the petition, agreeing with the prosecutor and the applicant that this did not change the disputed circumstances.

Three fur coats and an oversized handbag

During the hearing, the applicants again stated their position. They emphasized: in Art. 106 VK states that passengers have the right to free carry-on luggage within the limits established by the carrier in accordance with the FAP, approved on the basis of the requirements of the aircraft’s operational documentation. It was the approval of the requirements that raised the most questions.

The airline's representative, General Director Andrei Kalmykov, emphasized that no one took into account the characteristics of their aircraft, although the norms proposed by Pobeda for the volume of hand luggage are based on the recommendation presented by Boeing: things can only be placed on shelves, but not under seats, and excess standards for luggage volumes will affect both the safety and comfort of passengers. The Ministry of Transport stated that the approval of the requirements was carried out by a working group, including carriers and passengers, and was based on the “average parameters” of the aircraft. At the same time, standards for hand luggage were drawn up, taking into account the fact that things can be placed on luggage racks and under the seat in front. There is no such possibility on Pobeda aircraft. The judge’s question about how FAP 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 indicated.

“Only we have such a dense layout of the aircraft,” Andrei Kalmykov objected.

“We proceeded from the fact that some things cannot be weighed, but they may be needed during the flight, before or after, a bouquet - for romantics, outerwear - to run to the ramp in cold weather<...>", explained the representative of the Ministry of Transport and emphasized that the decision on the list of compulsory subjects is a collegial one.

But Pobeda didn’t think so. Representatives of Pobeda suggested refusing the bouquet, citing possible allergies of passengers. “Passengers must warn in advance about health problems,” a representative of the Ministry of Transport objected.

One of the most important criteria of a legislative act is certainty. It had to be formulated so that it could be interpreted unambiguously. Clause 135 of the FPA can be interpreted in any way you like.<...>If we talk about the balance between passenger convenience and traffic safety, the priority is safety, and it is not met under these standards. This rule is harmful to both the carrier and citizens.

Heinrich Padva, lawyer

Also in Pobeda they complained that the sizes of a handbag or briefcase are not regulated anywhere, in a briefcase, 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 clause regarding the free transportation of outerwear leads to abuses, for example on Italian flights. “Passengers carry three fur coats, citing the fact that these are outerwear,” Kalmykov was indignant. The question of outerwear caused a heated discussion: the airline representative had to separately explain: no one will take into account the clothes that the passenger is wearing: no one weighs them anyway. “If this is a passenger’s clothing, 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 space runs out, we will transport everything to you for free. cargo compartment, the passenger must warn about this 24 hours in advance,” Andrei Kalmykov convinced the court.

The Ministry of Transport said that they encountered the problem of additional outerwear for the first time and are “ready for dialogue.”

To nullify abuses on all sides is an impossible task; all issues that arise in practice must be resolved by the participants in the situation,” noted a representative of the Ministry of Transport.

Why not indicate to the FAP that it must be based on the carrier’s standards? The carrier needs at least minimal tools to control hand luggage, Pobeda objected.

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 Pobeda’s demands. Heinrich Padva said that Pobeda will likely challenge the decision made by the Supreme Court. The general director of the airline, Andrei Kalmykov, said that if the decision does come into legal force, the airline will have to look for a way out, for example, placing hand luggage “in excess of the norm” in luggage, since it is not physically possible to place it on the shelves - it is unsafe. As a result, this may also affect the cost of air tickets.

The so-called low-cost airline was forced to abandon its long-standing rules for carrying free items of hand luggage. The carrier removed descriptions of the briefcase and handbag from its website, and also removed restrictions on the size of these items. Similar instructions were sent to Pobeda representatives at various airports, reports the correspondent. website.

However, previous notices with invalid descriptions and restrictions are still available at check-in counters at at least some airports, including Moscow's Vnukovo. Templates for measuring briefcases and handbags are also still not dismantled. In case of conflict situations, passengers should refer to the information on the Pobeda website.

Let us remind you that Pobeda has been in violation of federal aviation regulations(FAP) to require passengers that a briefcase, computer or handbag carried free of charge be no more than 75 centimeters in the sum of three dimensions. She also refused free transportation those briefcases and bags that were more than 75 centimeters (and this is the majority of briefcases and a significant part of computer bags), or did not fit the definitions of these items created by the company itself (this made it difficult to transport unusual handbags and the like). At the same time, statements and letters from regulators represented by Rostransnadzor and the Ministry of Transport about the illegality of this practice did not stop Pobeda.

In February 2016, Rostransnadzor, after a passenger’s complaint, issued an inspector’s order to Pobeda to cease violations, but the airline appealed it in arbitration court. The court of first instance (case No. A40-123705/2016) confirmed the correctness of the regulator in July 2016, the appellate instance - in October, the cassation instance - in February 2017. Nevertheless, Pobeda appealed to the Supreme Court, which at the end of May refused to consider the company's appeal against the decisions of lower courts, finding no violations in the decisions of the latter. Having thus exhausted the possibilities of appeal, Pobeda was forced to remove illegal requirements from its transportation rules.

Unfortunately, it took almost a year and a half of litigation to resolve this not very difficult issue, which reached the Supreme Court. In fact, months of appeals allowed Pobeda to use them as a reason to not comply with the regulator’s and FAP’s orders for almost a year and a half. It is possible that it was precisely this delay in the execution of the decision (and not its cancellation) that was the real goal of the airline, since it allowed all these 16 months to continue to charge passengers extra fees for hand luggage, based on the illegal provisions of the Pobeda carriage rules. At the same time, it is not entirely clear why the court decision, which entered into legal force in October 2016 after the decision of the court of appeal, was executed by the carrier only in May 2017.

The decision of the court of first instance, later confirmed by higher courts, in particular, states: “Having established in the Rules for the carriage of personal belongings and luggage in passenger compartment aircraft on flights of Pobeda Airlines LLC such type of luggage as a “handbag” (free of charge), the company reserved the right to decide what type of handbag fits or does not fit this definition, which is unacceptable and contradicts paragraph 135 of FAR-82. " The courts have also indicated that airline rules must not conflict general rules air transportation and worsen the level of passenger service in comparison with the guarantees established by the FAP.

Currently, the text of the rules of “Victory” has been corrected; provisions indicated by the courts that do not comply with the FAP have been removed from it. The new text posted on the page for selecting baggage options of the reservation system actually repeats the wording of the FAP and reads: “the following items are carried free of charge in the aircraft cabin if they are with the passenger and are not included in the luggage: a handbag or briefcase (one of these items), a folder for papers, an umbrella, a cane, a bouquet of flowers, outerwear, printed publications for reading during the flight, baby food for the child during the flight, a cell phone, a camera, a video camera, a laptop computer, a suit in a suitcase, a cradle when transporting a child. "

At the same time, another case of discrepancy between the rules of Pobeda (and a number of other airlines) and the requirements of the FAP, considered in this case, remains unresolved. This applies to the passenger's right to carry 10 kilograms of baggage free of charge. Paragraph 122 of the FAP establishes that “the norms for free baggage allowance, including items carried by the passenger, cannot be less than ten kilograms per passenger.” This provision actually gives the passenger the right to decide whether to carry these 10 kilograms in the cabin or check them as checked baggage, although it does not explicitly say so. However, a number Russian airlines they interpret this differently: Pobeda requires that these 10 kilograms be checked in as luggage, while Sibir (S7 Airlines), UTair and some other carriers, on the contrary, require that the passenger take them with them into the cabin. Meanwhile, arbitration courts do not agree with the opinion of all these carriers.

In particular, in the same case of Pobeda against Rostransnadzor, the courts of all instances came to the conclusion that the airline did not have the right to charge the passenger who filed the complaint a 2,000 ruble fee for carrying hand luggage, since this luggage weighed only 9 kilograms and could be carried free in the cabin, not just in the luggage compartment. In another case No. A40-219359/2016, heard in 2016 after a passenger’s complaint against Siberia Airlines, the arbitration court decided that the passenger had the right to insist on checking in such an item as luggage instead of carrying it in the cabin, as Siberia Airlines demanded. In particular, the court indicated that if such an item, weighing within 10 kilograms, exceeds the dimensions allowed for hand luggage or contains items prohibited in hand luggage, then the requirement to carry it only in the cabin violates the passenger’s right to free transportation.

In other words, the courts interpret the FAP in favor of the passenger’s right to choose the method of transporting 10 free kilograms. Unfortunately, not a single court, examining all these particular cases, has formulated this right of the passenger in plain text, limiting itself to only indicating the illegality of the actions of carriers in specific cases of complaints. There is no direct wording in the FAPs themselves, which provokes airlines to interpret this point differently.

Until this point is finally settled by the courts (or until the FAPs themselves change), Pobeda passengers can carry 10 kilograms of checked luggage for free, plus take into the cabin for free any items from the above list, including a briefcase or computer or handbag, outerwear , a folder for papers, printed materials, a computer, a camera, a video camera, an umbrella, a bouquet of flowers, etc. It should be remembered that some Pobeda passengers at one time complained about the nagging of certain representatives of the carrier about cases or covers for a computer, camera or video camera and demands for payment for the carriage of these items. It is not entirely clear whether this strange practice has already been stopped. The Pobeda website contains a vague statement about this: “It is not recommended to place a laptop computer, camera or camera in cases or other containers.”

In addition, passengers should remember about other aspects of traveling on Pobeda flights: payment for more than 10 kilograms and parts, lack of food on board (and attempts to take your own food in a separate bag will lead to a fee of 2,000 rubles as for paid hand luggage). When purchasing on the Pobeda website, the company includes by default a ticket at the minimum “Standard” fare, to get rid of which you need to independently uncheck the corresponding item at the bottom of the selection page additional services. Seat selection, and to stimulate the purchase of this “Victory” service, passengers flying together to opposite ends of the cabin and to another place. A year ago, this led to a loud scandal: “Victory” to a family with a baby for the parents’ attempt to reunite on a plane - after the airline itself deliberately seated them in different rows in an effort to earn an extra 149 rubles for changing seats. Since then, Pobeda has also at least doubled this wild fee for the opportunity to sit together on the plane.

MOSCOW, November 20 – RIA Novosti. The Supreme Court rejected the appeal of Pobeda Airlines regarding the carriage of hand luggage, a RIA Novosti correspondent reports from the courtroom.

The representative of the Ministry of Transport, in turn, noted that according to the standards discussed in Pobeda, it will be impossible to transport an ordinary bag or jacket.

“Given that Pobeda has baggage-free fares, which means an additional payment, it seems to us that the rights of passengers will be violated in this way,” explained a representative of the Ministry of Transport.

The airline's general director objected to the department's arguments. He recalled that Pobeda is a low-cost airline with increased passenger capacity, which was achieved, among other things, by installing thinner seats and a dense layout.

“Passengers whose belongings do not fit into the luggage compartment of the plane send their belongings under the seats, which is contrary to safety standards, especially during evacuation,” Kalmykov said.

He called the main problem the lack of balance between the passenger’s right to carry hand luggage and ensuring the safe transportation of baggage. The general director asked the court to invalidate the law regarding the airline’s obligation to accept oversized bags in excess of the carry-on baggage allowance.

Carrier's reaction

After the court's decision was announced, Kalmykov told reporters that he was surprised and did not agree with it.

"We cannot fulfill current rule which we dispute, and ensure flight safety. In court, we clearly demonstrated that the list of things established by the rules cannot be transported in the cabin of an aircraft,” he said.

According to Kalmykov, the company will file a supervisory complaint against the decision. In case of refusal, the airline will be forced to set symbolic dimensions for hand luggage, he added.

“With a high degree of probability, we will set ridiculous dimensions for hand luggage, for example 10 by 10 by 10 centimeters; we will carry everything else in addition to hand luggage, as requested by the Ministry of Transport,” concluded the head of the company.

The essence of the conflict

New rules for carrying hand luggage came into force in November last year. Thus, the free carry-on baggage allowance cannot be less than five kilograms. In addition, the passenger has the right to take with him a number of things, including a handbag, a backpack, a men's briefcase, a backpack, a bouquet of flowers, a cradle, crutches, rollators, and outerwear.

Pobeda decided to challenge the rules because, according to the carrier, they do not take into account the capacity of the aircraft's luggage racks. As Kalmykov noted, due to the fact that Pobeda flights are almost always 100 percent loaded, passengers can only take on board the calculated baggage allowance (36*30*27 cm). It is impossible to place anything more in the cabin beyond these dimensions, Kalmykov said. At the same time, the airline did not demand the removal of wheelchairs, rollators, walkers, crutches, and cribs from the list.

The Supreme Court of Russia, which considered the lawsuit of Pobeda Airlines regarding changes in the rules for the carriage of hand luggage, sided with consumers, not the carrier. As a result, passengers retained the right to bring bags, backpacks, and briefcases into the aircraft cabin in excess of the established carry-on baggage allowance of 5 kg. “Victory”, however, does not give up and promises to appeal the decision made by the Supreme Court.

The case began with an order from the Ministry of Transport, which came into force in November 2017: the department considered that when checking in for a flight there is no need to weigh handbags or briefcases, taking them outside the scope of the term “carry-on luggage.” Pobeda did not agree with this opinion. Representatives of the company pointed out, in particular, that the presence of bags and backpacks could affect safety, and also that the Ministry of Transport, when making its decision, did not take into account the passenger capacity of the aircraft.

Airline CEO Andrey Kalmykov, justifying Pobeda's objections in court, said that the carrier ordered an expert study from Boeing and received the following conclusion: in order to safely transport 189 passengers (this is the maximum load of aircraft that Pobeda uses), each passenger can take with you one piece of hand luggage measuring 36x30x27 cm in three dimensions. Moreover, this hand luggage should only be on the top shelf. It is impossible to remove it under the seat in front.

“The design specifically of our aircraft that's how it is, - Mr. Kalmykov explained, - that the layout of the aircraft is made taking into account maximum density. We use so-called thin chairs to transport as much as possible large quantity passengers. The space for the distance is 29 inches. It’s very small, so there’s no room for hand luggage downstairs.”.

On this moment, let us remind you that the following rules apply for transporting things in the aircraft cabin.

A passenger, regardless of the type of ticket with which he is traveling (refundable, non-refundable, with luggage, without luggage), has the right to take hand luggage weighing up to 5 kilograms into the aircraft cabin. Some airlines allow more weight.

In addition to this established norm, a passenger can carry with him a handbag, a men's briefcase or backpack (the weight and dimensions of the backpack are determined by the carrier), a briefcase, outerwear, baby food and a stroller, a bouquet of flowers, as well as medicines.

Phones, books, cameras, laptops can only be brought into the cabin if they are hidden in hand luggage.

In addition, the passenger can bring duty-free purchases into the cabin for free - but in accordance with the dimensions and weight restrictions that each airline sets independently.

The Supreme Court has allowed handbags, backpacks, a suit in a briefcase and other things to be carried free of charge in hand luggage. The low-cost carrier Pobeda advocated for restrictions on their free transportation on planes. But the court sided with the Ministry of Transport

General Director of Pobeda Andrey Kalmykov (center) (Photo: Andrey Lyubimov / RBC)

In addition to carry-on luggage, air passengers can also take on board backpacks, handbags, umbrellas, crutches and other items specified in the Federal Aviation Regulations free of charge. This decision was made by the Supreme Court on Tuesday, August 7.

In May, the low-cost airline Pobeda (part of the Aeroflot group) went to the Supreme Court with a demand to declare illegal the rules for the carriage of hand luggage for non-refundable so-called baggage-free airline tickets, by order of the Ministry of Transport in November 2017.

The defendants in the case were the Ministry of Transport and the Ministry of Justice.

According to the new rules, airlines can sell tickets at baggage-free fares (previously it was mandatory free rate 10 kg), but the passenger can take with him free hand luggage, the weight of which is 5 kg. However, in addition to this, according to clause 135 of the Federal Aviation Regulations, airlines are required to take a set of things from the approved list for free. It includes: a backpack, the weight and dimensions of which are established by the carrier’s rules, handbag, a bouquet of flowers, outerwear, a suit in a suitcase, baby food for the child during the flight. In addition, the list includes medications, crutches, canes, walkers, duty-free goods packed in a sealed plastic bag, the weight and dimensions of which are established by the carrier’s rules, etc.

However, Pobeda opposed this approach. The carrier believes that by its order the Ministry of Transport imposed mutually exclusive obligations on airlines: to accept for transportation hand luggage, the weight and dimensions of which ensure its safe placement in the aircraft cabin (clause 133 of FAP-82), and the obligation to accept items for transportation as hand luggage without taking into account their weight, dimensions and the possibility of safe placement in the aircraft cabin, with the exception of a backpack (clause 135 of FAP-82).

The general director of Pobeda, Andrei Kalmykov, in the courtroom demonstrated the things that, according to clause 135 of the FAP, are mandatory for transportation by the airline: a briefcase, a woman's bag, a backpack, a bouquet of flowers, outerwear. As a result, we ended up with a whole bunch of things allowed for free transportation. At the same time, Kalmykov emphasized that the obligation to transport these things threatens flight safety. “We don’t mind baby food, as well as social items like crutches and the like, we’ll find room for that in the salon,” he said. Kalmykov added that the law does not contain the concept of “woman’s bag.” “For some, a woman’s bag is a huge checkered shuttle bag,” he clarified.

The representative of the Ministry of Transport suggested “not bringing to the point of absurdity” the topic with things from the list of FAP 135. He added that this list will be adjusted to eliminate contradictions.

The Ministry of Justice sided with the Ministry of Transport regarding the carriage of hand luggage. The representative of the Ministry of Justice also added that the “excess” allowance may be adjusted in the future.

When asked by the prosecutor about the basis on which the airline concluded that the things shown endangered safety, Kalmykov explained that they turned to the manufacturer of the Boeing aircraft used by Pobeda for consultation. “We contacted the manufacturer, and we received an answer that there were 189 more people (the number of passengers on the Pobeda liners. — RBC) it is possible to place carry-on luggage only that corresponds to the calibrator,” he noted.

In December, the carrier submitted new baggage rules to the Ministry of Transport. According to the airline's general director Andrei Kalmykov, the ministry should not impose service requirements on airlines; the rules should only specify safety requirements. At the same time, Pobeda has its own rules since December 10, prohibiting passengers from taking into the aircraft cabin items that exceed the size established by the airline for free hand luggage of 36x30x27 cm, even for an additional fee. The airline explained the change in rules due to the lack of space for extra baggage in airplane cabins.

 

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