Thursday, 14 November 2019

LongJiang Airlines in financial woes over lawsuits on its two leased aircraft

Report by : Gan Yung Chyan
                  / KUCINTA SETIA


In July 2019, the plane dispute between Longjiang Airlines and Zhongfei Leasing was decided by the Supreme People's Court and LongJiang Airlines lost the suit against Zhongfei Leasing.

Around this dispute, the two sides have been arguing for more than two years.

Dispute Origin : Longjiang Airlines rented an old aircraft

LongJiang Airlines is one of the smallest airlines in China. It was in trouble since the beginning of its operation because its shareholders are relatively weak and are  unable to provide the huge capital needs for LongJiang Airlines.

When the aircraft was originally ordered, LongJiang Airlines was unable to pay for the purchase. No aircraft. How to get a flight operation certificate. How to fly?

Later, LongJiang Airlines approached Zhongfei Leasing. On 31 May 2016, the two parties signed an agreement to determine that LongJiang Airlines' leased A321 aircraft must be from Zhongfei Baoqing.

Agreement

1. LongJiang Airlines rented an Airbus second-hand aircraft from Zhongfei Baoqing for a period of 48 periods, each period of 3 months, with a lease term of 144 months (12 years), except for the first period of rent of US$620,000. The subsequent rent for each period was $930,000, and the total aircraft rental was $44.33 million.

2. In addition to the rent, LongJiang Airlines shall pay a total of 48 VAT and maintenance reserves to Zhongfei Baoqing, both of which are floating in each period.

3. If LongJiang Airlines fails to pay various fees as agreed, it will pay a fine to Zhongfei Baoqing, and the penalty rate is the interest rate of the sum of 6 months at 8 per cent annual rate.

4. LongJiang Airlines should also pay a deposit of US$5 million to Zhongfei Baoqing. In the absence of a breach of contract, Zhongfei Baoqing will refund the deposit to Longjiang.

5. If LongJiang Airlines fails to pay the relevant funds in time, it will constitute a breach of contract. Zhongfei Baoqing may terminate the aircraft leasing, and Longjiang Airlines compensates Zhongfei Baoqing for the relevant losses.

In order to ensure the performance of the debt, Zhongfei Baoqing, LongJiang Airlines and Zhang Yuming signed a “guarantee contract”, stipulating that Zhang Yuming, Xiangyu Company and Haifu Company fully fulfilled the “Aircraft Lease Agreement” and the Supplemental Agreement for LongJiang Airlines. The obligations under the project provide joint and several liability guarantees to Zhongfei Baoqing.

On 3 June 2016, LongJiang Airlines confirmed the receipt of the MSN4611 aircraft. The aircraft is equipped with two CFM56 engines.

Dispute: Aircraft failure, arrears of rent

After the aircraft was delivered, LongJiang Airlines conducted a trial operation, but then a damaged engine caused the aircraft to fail to operate normally. LongJiang Airlines sent the damaged engine to Zhuhai for maintenance, and the MSN4611 aircraft was parked at Harbin Taiping Airport.

Since then, LongJiang Airlines has been in arrears with aircraft rentals and other expenses.

From July 2016 to April 2017, Zhongfei Baoqing issued a letter to LongJiang Airlines on several occasions, requesting Longjiang Airlines to pay the fees and fines owed to Zhongfei Baoqing.

On 13 October 2016, Zhongfei Baoqing sent a letter to Zhang Yuming, Xiangyu Company and Haifu Company, requesting Zhang Yuming, Xiangyu Company and Haifu Company to assume joint and several liability for the payment of LongJiang Airlines.

On 16 June 2017, Zhongfei Baoqing issued a Notice of Dismissal to LongJiang Airlines, informing Longjiang Airlines to cancel the agreement; and requested Longjiang Airlines to immediately stop the MSN4611 aircraft and return the aircraft to Zhongfei Baoqing Company. All documents, payment of outstanding payments, compensation for related losses.

On 16 June 2017, Zhongfei Company issued an announcement in Hong Kong to terminate the two lease agreements with LongJiang Airlines.

Transition: Negotiation between the two parties

After consultation between the two parties, on 1 September 2017, Zhongfei Baoqing signed a Memorandum of Understanding with LongJiang Airlines.

The main content is: LongJiang Airlines will pay arrears of rent and other expenses to Zhongfei Baoqing before September 15, 2017, and increase the temporary guarantee deposit of USD 1 million to Zhongfei Baoqing; Longjiang Airlines still holds the MSN4611 aircraft and continues to pay. Various funds and fulfilling all obligations.

After the signing of the Memorandum of Understanding,

On 4 September 2017, LongJiang Airlines paid 1.04 million yuan to Zhongfei Baoqing;

On 5 September 2017, LongJiang Airlines paid US$930,000 to Zhongfei Baoqing;

On 15 September 2017, LongJiang Airlines paid 14.16 million yuan to Zhongfei Baoqing;

On 28 September 2017, LongJiang Airlines paid 5 million yuan to Zhongfei Baoqing;

On 26 October 2017, LongJiang Airlines paid 4.2 million yuan to Zhongfei Baoqing;

On 4 December 2017, LongJiang Airlines paid 700,000 yuan to Zhongfei Baoqing.

I do not know if the above excessive payments is due to the pressure to afford rent or based on other considerations.

On 8 December 2017, LongJiang Airlines issued a notice to Zhongfei Company, and decided to terminate the MSN4611 aircraft leasing transaction with Zhongfei Company.

4 One of the lawsuits: the first instance of the Heilongjiang Provincial High Court

Subsequently, Zhongfei Baoqing appealed to the Higher People's Court of Heilongjiang Province.

The following litigation request is proposed:

1. LongJiang Airlines immediately returned the aircraft and all documents to Zhongfei Baoqing;

2. LongJiang Airlines should cooperate with Zhongfei Baoqing to handle the relevant procedures of the aircraft and bear the corresponding expenses;

3. LongJiang Airlines paid the unpaid rent of USD 2.32 million and fine of RMB 320,000, tax and fine of RMB 2.08 million, maintenance reserve and fine of RMB 1.1 million;

4. LongJiang Airlines paid a loss of 6.87 million US dollars from the vacant period of the MSN4611 aircraft from 3 June 2018 to 31 December 2019;

5. LongJiang Airlines paid a loss of USD 3.66 million from the MSN4611 aircraft from 1 January 2020 to 2 June 2028;

6. LongJiang Airlines paid the relevant costs and expenses of 2.96 million US dollars;

7. LongJiang Airlines paid a refund of $8.5 million;

8. LongJiang Airlines paid a fee of US$1.55 million to re-customize the MSN4611 aircraft;

9. LongJiang Airlines paid the actual rights and expenses of 1.38 million yuan;

The above 3 to 9 expenses deduct the expenses paid by LongJiang Airlines, and LongJiang Airlines will also pay an equivalent of RMB 129 million; 

10. Zhang Yuming, Xiangyu Company and Haifu Company shall bear joint and several liability for the payment obligations of LongJiang Airlines.

11. LongJiang Airlines, Zhang Yuming, Xiangyu Company and Haifu Company bear all the litigation costs of this case.

LongJiang Airlines issued a counterclaim request:

1. Zhongfei Baoqing compensated LongJiang Aviation MSN4611 for the loss of operating income during the flight stoppage of RMB 52 million;

2. Zhongfei Baoqing returned the rent, tax and maintenance reserve of 14.49 million yuan during the suspension of LongJiang Airlines aircraft;

3. Zhongfei Baoqing compensated 660,000 yuan for economic losses caused by its breach of contract to LongJiang Airlines.

4. The costs of this lawsuit and counterclaim are borne by Zhongfei Baoqing Company.

LongJiang Airlines believes that:

1. After Zhongfei Baoqing Company delivered the MSN4611 aircraft to LongJiang Airlines, the aircraft engine suffered serious quality problems when the aircraft only flew 240 hours and 105 flight cycles. LongJiang Airlines had reason to believe that the aircraft was delivered. Serious quality problems occurred in such a short period of time, and the aircraft had problems at the beginning of the delivery by Zhongfei Baoqing.

2. According to the requirements of Zhongfei Baoqing, the aircraft maintenance must obtain its consent, but Zhongfei Baoqing did not agree to the maintenance of LongJiang Airlines after the aircraft engine failed, resulting in LongJiang Airlines suffered a huge economic Loss, Zhongfei Baoqing shall be liable to Longjiang Airlines for compensation.

3. On 16 June 2017, Zhongfei Baoqing issued a notice on the Hong Kong Stock Exchange to terminate the "Aircraft Leasing Agreement", which caused great reputational impact on LongJiang Airlines. The Civil Aviation Administration of China imposed penalties on LongJiang Airlines. The loss should be compensated by Zhongfei Baoqing to LongJiang Airlines.

Zhongfei Baoqing believes that:

1. The aircraft involved was that LongJiang Airlines was unable to pay for the purchase of the aircraft. It requested that Zhongfei Baoqing purchase the aircraft and then lease it to LongJiang Airlines. Therefore, the selection and inspection of the aircraft were completed by LongJiang Airlines. Sign the "Certificate of Final Acceptance" to confirm that the aircraft is in good condition and there are no quality problems.

2. Zhongfei Baoqing did not have the right to instruct LongJiang Airlines to repair the engine.

3. The two engines involved in the aircraft are no longer on the plane. There are dozens of missing parts. It is no longer in airworthiness. Zhongfei Baoqing will reclaim the lost parts of the aircraft involved in the case.

This lawsuit is obviously a breach of contract by LongJiang Airlines. Therefore, on June 11, 2018, the Heilongjiang High Court ruled as follows:

1. The Zhongfei Baoqing and the lease agreement are effective.

2. LongJiang Airlines will return the aircraft and documents to Zhongfei Baoqing within 10 days after the effective date of this judgment and cooperate with relevant procedures.

3. LongJiang Airlines paid rent and fines of USD 480,000;

4. LongJiang Airlines paid a loss of 7.74 million yuan;

5. LongJiang Airlines paid RMB 140,000 for the payment of the rights of Zhongfei Baoqing;

6. Zhang Yuming, Harbin Xiangyujin, and Heilongjiang Haifu shall be jointly and severally liable for debts;

7. Rejecting other claims of Zhongfei Baoqing;

8. Dismissed the counterclaim request of LongJiang Airlines.

Most of the requests of Zhongfei Baoqing were supported, but the amount of compensation was greatly reduced. Only the rent, taxes, maintenance funds and fines were supported. The remaining rent refund fees, vacancy fees, conversion fees, and rental losses were not supported.

Litigation 2: Supreme People's Court Second Review

LongJiang Airlines appealed to the Supreme People's Court of the People's Republic of China and appealed:

1. Request to revoke the civil judgment of the Heilongjiang Provincial High Court;

2. Requesting that LongJiang Airlines and Zhongfei Baoqing continue to perform the Aircraft Leasing Agreement in accordance with the law;

3. Requesting a legal order to support LongJiang Airlines’ financial losses of RMB 67,146,900 due to its breach of contract in the original counterclaim

4. Request for legal order The first and second trial litigation costs are all borne by Zhongfei Baoqing.

Zhongfei Baoqing requested to support the judgment of the Heilongjiang High Court and requested LongJiang Airlines to return the aircraft quickly and reject the LongJiang Aviation litigation request.

On 24 December 2018, the Supreme People's Court held that LongJiang Airlines' appeal request could not be established and should be dismissed; the first-instance judgment found that the facts were clear, the applicable law was correct, and should be maintained, and the judgment was as follows:

The appeal was dismissed and the original judgment was upheld.

Third lawsuit: retrial of the Supreme People's Court

After the final court of the Supreme Court, it was unexpected that LongJiang Airlines appealed again to the Supreme Court for retrial.

On July 19, 2019, the Supreme People's Court held that LongJiang Airlines' retrial application did not meet the situation that should be re-examined, and the ruling was as follows:

Rejected the retrial application of Longjiang Airlines.

Longjiang Airlines is in financial woes

However, although Zhongfei Baoqing won the lawsuit, it encountered difficulties in its implementation. The target aircraft number B-8289 (MSN4611) in the lawsuit lacked 47 parts including two engines.

One of the two engines was still not recovered in Zhuhai, and the other was dismantled and installed on other aircraft of LongJiang Airlines.

Today, LongJiang Airlines still maintains three aircraft for initial operation, but one of them is no longer operational, and the leaser is urging the aircraft; the other is also a subsidiary of China Flying, which is purchased and leased to LongJiang. Aviation, there have been disputes.

In addition, LongJiang Airlines' huge debt of more than 400 million yuan owed to Haifu Company has not been fulfilled.

Jindong Investment Group, which was tried to introduce, has a dispute with LongJiang Airlines and Zhang Yuming.

On 3 April 2019, the Beijing Arbitration Commission established a ruling:

LongJiang Company, Zhang Yuming, etc. returned RMB 512 million of equity investment from Jindong Company, paying interest of 4.65 million yuan; and from 23 October  2018 to the date of actual payment, based on 512 million yuan, according to the annual interest rate of 24 per cent. The standard pays interest to the applicant.

So far, none of the above cases have been implemented.

Source: (2019) Supreme Court of Peoples 1987

(2017) Hei Min 133

(2018) Supreme Court of the People 1218

(2019) Jing 04 Min Special 209

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