• The Korean Journal of Air & Space Law and Policy
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• v.5
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• pp.119-169
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• 1993

In this article the present writers have surveyed recent cases on Warsaw Convention especially on the cases emerged in the years between 1986 to 1993. The cases before 1986 were discussed already in the book titled "Liability of International Air Carrier," written by Professor Choi, published in Seoul 1986. In this article the writers have reviewed most of the American cases and some cases from the courts of Germany, France and England. Main subjects which were discussed herein were as follows: Liability of air carriers in Warsaw Convention carriage 1. Exclusivity of the Warsaw Convention as a remedy 2. Warsaw Jurisdiction 3. The scope of the Warsaw Convention's definition of "Accident" under Article 17 of the Warsaw Convention (1) Mental anguish (2) Unusual or unexpected events 4. Adequacy of notice of the limitation of liability to passengers for injuries and death 5. Damages recoverable, punitive damages and burden of proof 6. The wilful misconduct exception; definition of wilful misconduct 7. Cargo and passenger baggage 8. Time limitation of actions After examining articles published world-wide, this article compiles and analyses recent cases involving the Warsaw Convention system. As Warsaw System is based on international convention, maintaining uniformity in interpretation is of utmost importance. Therefore, this type of study is essential for resolving air-transportation disputes in Korea. This article examines the current state and recommends the desired course for the Warsaw Convention. The writers hope that this article is helpful to the Korean courts and those in the air-transportation industry in interpreting the Warsaw Convention.

• The Korean Journal of Air & Space Law and Policy
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• v.22 no.2
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• pp.109-133
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• 2007

The legal labyrinth through which we have just walked is one in which even a highly proficient lawyer could easily become lost. Warsaw Convention's original objective of uniformity of private international aviation liability law has been eroded as the world community ha attempted again to address perceived problems. Efforts to create simplicity and certainty of recovery actually may have created less of both. In any particular case, the issue of which international convention, intercarrier agreement or national law to apply will likely be inconsistent with other decisions. The law has evolved faster for some nations, and slower for others. Under the Warsaw Convention of 1929, strict liability is imposed on the air carrier for damage, loss, or destruction of cargo, luggage, or goods sustained either: (1) during carriage in air, which is comprised of the period during which cargo is 'in charge of the carrier (a) within an aerodrome, (b) on board the aircraft, or (c) in any place if the aircraft lands outside an aerodrome; or (2) as a result of delay. By 2007, 151 nations had ratified the original Warsaw Convention, 136 nations had ratified the Hague Protocol, 84 had ratified the Guadalajara Protocol, and 53 nations had ratified Montreal Protocol No.4, all of which have entered into force. In November 2003, the Montreal Convention of 1999 entered into force. Several airlines have embraced the Montreal Agreement or the IATA Intercarrier Agreements. Only seven nations had ratified the moribund Guatemala City Protocol. Meanwhile, the highly influential U.S. Second Circuit has rendered an opinion that no treaty on the subject was in force at all unless both affected nations had ratified the identical convention, leaving some cases to fall between the cracks into the arena of common law. Moreover, in the United States, a surface transportation movement prior or subsequent to the air movement may, depending upon the facts, be subject to Warsaw, or to common law. At present, International private air law regime can be described as a "situation of utter chaos" in which "even legal advisers and judges are confused." The net result of this barnacle-like layering of international and domestic rules, standards, agreements, and criteria in the elimination of legal simplicity and the substitution in its stead of complexity and commercial uncertainty, which manifestly can not inure to the efficient and economical flow of world trade. All this makes a strong case for universal ratification of the Montreal Convention, which will supersede the Warsaw Convention and its various reformulations. Now that the Montreal Convention has entered into force, the insurance community may press the airlines to embrace it, which in turn may encourage the world's governments to ratify it. Under the Montreal Convention, the common law defence is available to the carrier even when it was not the sole cause of the loss or damage, again making way for the application of comparative fault principle. Hopefully, the recent entry into force of the Montreal Convention of 1999 will re-establish the international legal uniformity the Warsaw Convention of 1929 sought to achieve, though far a transitional period at least, the courts of different nations will be applying different legal regimes.

• The Korean Journal of Air & Space Law and Policy
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• v.7
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• pp.101-134
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• 1995

Article 3 Paragraph 1 of the Warsaw Convention regulates the requirements of passenger tickets, Article 4 Paragraph 3, the requirements of baggage tickets, Article 8, the requirements of airway bills. In this article the writer has discussed the legal nature of the documents of air carriage, such as air waybills, passenger tickets and baggage checks. Further, the writer has also discussed several issues relating to the use of the documents of air carriage under the Warsaw Convention. Article 3 Paragraph 2, as well as Article 4 Paragraph 4 and 9 provides that the carrier shall not be entitled to avail himself of the provisions of the Convention which evade or limit his liability. In particular, the Montreal Agreement of 1966 provides that the notification on the carrier's liability in passenger ticket should be printed in more than 10 point type size with contrasting ink colors. However, another question is whether the carrier shall not be entitled to avail himself of the liability limit under the Convention in case the type size is below 10 points. The Convention does not specify the type size of certain parts in passenger tickets and only provides that the carrier shall not be entitled to avail himself of liability limit, when a carrier fails to deliver the ticket to passenger. However, since the delivery of passenger tickets is to provide an opportunity for passengers to recognize the liability limit under the Convention and to map out a subsequent measures, the carrier who fails to give this opportunity shall not be entitled to avail himself of the liability limit under the Convention. But some decisions argue that when the notice on the carrier's liability limit is presented in a fine print in a hardly noticeable place, the carrier shall not be entitled to avail himself under the Convention. Meanwhile, most decisions declare that regardless of the type size, the carrier is entitled to avail himself of liability limit of the provisions of the Convention. The reason is that neither the Warsaw Convention nor the Montreal Agreement stipulate that the carrier is deprived from the right to avail himself of liability limit of the provisions of the Convention when violating the notice requirement. In particular, the main objective of the Montreal Agreement is not on the notice of liability limit but on the increase of it. The latest decisons also maintain the same view. This issue seems to have beeen settled on the occasion of Elisa Chan, et al. vs. Korean Airlines Ltd. The U.S. Supreme Court held that the type size of passenger ticket can not be a target of controversy since it is not required by law, after a cautious interpretation of the Warsaw Convention and the Montreal Agreement highlighting the fact that no grounds for that are found both in the Warsaw Convention and the Montreal Agreement. Now the issue of type size can hardly become any grounds for the carrier not to exclude himself from the liability limit. In this regard, any challenge to raise issue on type size seems to be defeated. The same issue can be raised in both airway bills and baggage tickets. But this argument can be raised only to the tranportation where the original Convention is applied. This creates no problem under the Convention revised by the Hague Protocol, because the Hague Protocol does not require any information on weight, bulk, size, and number of cargo or baggage. The problem here is whether the carrier is entitled to avail himself of the liability limit of the provisions of the Convention when no information on number or weight of the consigned packages is available in accordance with Article 4 of the Convention. Currently the majority of decisions show positive stance on this. The carrier is entitled to avail himself of the liability limit of the provisions of the Convention when the requirement of information on number and weight of consigned packages is skipped, because these requirements are too technical and insubstancial. However some decisions declare just the opposite. They hold that the provisions of the Convention Article 4 is clear, and their meaning and effect should be imposed on it literally and that it is neither unjust nor too technical for a carrier to meet the minimum requirement prescribed in the Convention. Up to now, no decisions by the U.S. Supreme Court on this issue is available.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.147-176
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• 2011

China is experiencing rapid economic development and the volume of air passengers and cargo transportation has increased significantly in recent years. To the contray, the regulations on liability of air carrier in china fall behind and are not sufficiently applicable in disputes. Their lack of sufficient protection for air passenger's interests became obstructive factor for further developments of Chinese air transportation industry. The legal system of air carrier's liability mainly consists of the contents as followed. The liability period, the scope of liability, amount of compensation for damage, limitation of liability, liability exemption of air carrier, jurisdiction, limitation of action, applicable law etc. Laws and rules concerning these issues are regulated in Civil Aviation Law and regulations published by Civil Aviation Administration of China. This article described the main contents of air carrier's liability and examined the legislative problems in their applications in real cases. In order to solve the legal problems on the air carrier's liability and disputes between wrongdoers and survivors etc, it is necessary and desirable for china to amend revelvant provisions. One of my proposals is to raise the amount of compensation limitation for damage. And I also would like to suggest that Civil Aviation Law should treat international and domestic transportation equally on the limitation of compensation for air carrier's liability. China has also acceded to the Montreal Convention of 1999 on July 31, 2005. This is an effort to make the law of air carriage unified worldwide through various international conventions to achieve conformity between rules of international air carriage and that of Chinese domestic aircarriage. Furthermore, there should be additional detailed implementation rules for air carrier to assume liability for the losses to passengers, baggage or cargoes caused by delays in the air transport. Significant clarifications are also needed for provisions concerning whether and how air carrier assume liability for moral damage caused by accident.