• The Korean Journal of Air & Space Law and Policy
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• v.35 no.3
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• pp.39-63
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• 2020

This paper reviews the Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with COVID-19 of EU commission. To enlighten the obscurity and to mitigate the economic impacts of the COVID-19, European Commission has published "Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19" on March 18, 2020. The Guideline essentially aims to create a coherent system of rules to assist the passengers, industry and national authorities overall under the unprecedented circumstances across the European Union. To do so, the Guideline is drafted to cover the rights of passengers travelling by air, rail, ship or bus/coach, maritime and inland waterways, as well as the corresponding obligations for carriers. From an aviation industry focused perspective, by referencing the Regulation (EC) numbered 261/2004, the Guideline specifically applies to cancellation and delay in flights which are seen as the dark spots for the air carriers concerning potential burdens.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.1
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• pp.33-62
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• 2020

The current air transportation industry is facing a lot of changes not only in the quantitative growth of the market, but also in the legal aspects. For many years, the Warsaw Convention has contributed to the uniform discipline of civil carriers' legal liabilities arising from international aviation accident and has fulfilled the duties of legal guardians for the development of the air transport industry. In the process, however, the consumer interests of the air transport industry did not have much protection compared to other industries. In response, the Montreal Convention has effected for protecting the interests of aviation consumers, and there are numerous legal changes around the world to protect aviation consumers like passengers. The mental damages of airline passengers arising from the accident can also be understood as part of the protection of air consumers. Considering that the US Federal Court has dealt with the recognition of mental damages for air passengers since the early 1990s. However, Korean judicial precedent still excludes mental anguishes from the scope of damage compensation. From this point of view, it is considered academically meaningful to analyze the latest case of the US federal court. Recently, the United States Court of Appeal for the Sixth Circuit in Doe v Etihad Airways applied a different interpretation against the traditional opinion: passengers could not recover for mental distress unless that mental distress resulted from a bodily injury sustained in an airplane accident. The background of the court's conclusions can be explained in many ways, among other things, unlike the Warsaw Convention the new international rule, Montreal Convention is recognizing the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.177-199
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• 2015

Commerce enriches human life enriched and within commerce, transportation of cargo is arguably the most important in business transactions. Traditionally, marine transport has been major commercial transaction, but carriage cargo by air is on the increase. While the fare for freight in comparison with that of ocean is higher, air freight has many benefits that justify the higher shipping fee; lower insurance premium, packing charges, inventory control, cost management and especially speed. Therefore, air freight transport is accumulating gradually. An air waybill(AWB) is needed in the air transport flow. It is a nonnegotiable security, so the holder cannot transfer of a right to a third party. Some scholars suggest that a negotiable AWB is needed. However, it seems nearly impossible to do so; an e-AWB use shows a gain in numbers, even if it has not met expectations. Going forward, it would appear reasonable to conduct a follow-up study on the utility and legal problem for e-AWB. After sending goods, the consignor has the right of disposition of cargo in some cases, and more research is necessary, because it is related to change of ownership and a trade settlement. According to WATS (World Airlines Transport Statistics), the Korean Air took third place in international freight in 2014, and fifth in total, domestic and international to great acclaim. However, there is a lack of research supporting the business showing. It is hope that more studies on e-AWB, stoppage in transit, and a risk of outstanding amount, etc. connect to develop Korean air freight industry.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.267-290
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• 2018

This paper reviews and criticizes the EU Case of C-452/13, Germanwings GmbH v. Ronny Henning. Under this case, Ronny Henning later sued Lufthansa's budget carrier Germanwings after it refused to pay him 250 euros compensation for a delay he said totalled more than three hours. Germanwings, however, maintained his flight had arrived only two hours and 58 minutes behind schedule. In those circumstances, the following question to the European Court of Justice (ECJ) for a preliminary ruling: What time is relevant for the term time of arrival used in Articles 2, 5 and 7 of Regulation [No 261/2004]: (a) the time that the aircraft lands on the runway (touchdown); (b) the time that the aircraft reaches its parking position and the parking brakes are engaged or the chocks have been applied (in-block time); (c) the time that the aircraft door is opened; (d) a time defined by the parties in the context of party autonomy? ECJ says that the situation of passengers on a flight does not change substantially when their aircraft touches down on the runway at the destination airport, when that aircraft reaches its parking position and the parking brakes are engaged or when the chocks are applied, as the passengers continue to be subject, in the enclosed space in which they are sitting, to various constraints. Therefore, it is only when the passengers are permitted to leave the aircraft and the order is given to that effect to open the doors of the aircraft that the passengers may in principle resume their normal activities without being subject to those constraints. ECJ rules that it is apparent that Articles 2, 5 and 7 of Regulation No 261/2004 must be interpreted as meaning that the concept of 'arrival time', which is used to determine the length of the delay to which passengers on a flight have been subject, corresponds to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft.

• The Korean Journal of Air & Space Law and Policy
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• v.20 no.1
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• pp.45-85
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• 2005

The purpose of this paper is to examine the concept of "accident" under the Warsaw system including the Warsaw Convention for the Unification of certain Rules for International Carriage by Air of 1929 and the Montreal Convention of 1999. Most leading case on this subject is Air France v. Saks(470 U.S. 392 (1985)). In the Saks case, it was held that the definition of an accident must be applied flexibly, and most courts have adhered to the definition of accident in Saks case, the application of accident has been less than consistent. However, most cases have held that if the event is usual and expected operation of the aircraft, then no accident has occurred. Courts have also held that where the injury results from passenger's own internal reaction to the usual, normal, and expected operations of the aircraft, it is not caused by an accident. As the Warsaw drafters intended to create a system of liability rules that would cover all hazards of air travel, the carrier should liable for the inherent risks of air travel. It is right in that the carrier is in a better position than the passenger to control the risks during air travel. Most US courts have held that carriers are not liable for one passenger's assault on the other passenger. The interactions between passengers are not part of the normal operations of the aircraft and are therefore not covered by the word "accident" under Art 17 of the Warsaw Convention. It is regretful that the Montreal Convention did not attempt to clarify the concepts of accident in itself. In the light of an emerging tendency to hold the air carrier liable for occurrences that do not exactly go to the operation of the aircraft, it is desirable to regulate that the carrier is liable for an "event" instead of an "accident" in accordance with the Guatemala City protocol.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.1
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• pp.103-125
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• 2020

This paper reviews the EU Case, Claudia Wegener v. Royal Air Maroc SA [2018] ECLI:EU:C:2018:361, Case C-537/17. It analyzes some issues as to Wegener case by examining EU Regulations and practical point of views. Article 3(1)(a) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, entitled scope, provides: "this Regulation shall apply: (a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies; (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier." ECJ held that must be interpreted as meaning that Regulation (EC) No 261/2004 applies to a passenger transport effected under a single booking and comprising, between its departure from an airport situated in the territory of a Member State and its arrival at an airport situated in the territory of a third State, a scheduled stopover outside the European Union with a change of aircraft. According to the Court, it is apparent from the regulation and case-law that when, as in the present case, two (or more) flights are booked as a single unit, those flights constitute a whole for the purposes of the right to compensation for passengers. Those flights must therefore be considered as one and the same connecting flight.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.3-54
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• 2014

The Republic of Korea enacted the Air Transport Act in Commercial Law which was entered into force in November, 2011. The Air Transport Act in Korean Commercial Law was established to regulate domestic carriage by air and damages to the third party which occur within the territorial area caused by aircraft operations. There are some problems to be reformed in the Provisions of Korean Commercial Law for the aircraft operator's liability of compensation for damages to the third party caused by aircraft operation as follows. First, the aircraft operator's liability of compensation for damages needs to be improved because it is too low to compensate adequately to the third party damaged owing to the aircraft operation. Therefore, the standard of classifying per aircraft weight is required to be detailed from the current 4-tier into 10-tier and the total limited amount of liability is also in need of being increased to the maximum 7-hundred-million SDR. In addition, the limited amount of liability to the personal damage is necessary to be risen from the present 125,000 SDR to 625,000 SDR according to the recent rate of prices increase. This is the most desirable way to improve the current provisions given the ordinary insurance coverage per one aircraft accident and various specifications of recent aircraft in order to compensate the damaged appropriately. Second, the aircraft operator shall be liable without fault to damages caused by terrorism such as hijacking, attacking an aircraft and utilizing it as means of attack like the 9 11 disaster according to the present Air Transport Act in Korean Commercial Law. Some argue that it is too harsh to aircraft operators and irrational, but given they have also some legal duties of preventing terrorism and in respect of helping the third party damaged, it does not look too harsh or irrational. However, it should be amended into exempting aircraft operator's liability when the terrorism using of an aircraft by well-organized terrorists group happens like 9 11 disaster in view of balancing the interest between the aircraft operator and the third party damaged. Third, considering the large scale of the damage caused by the aircraft operation usually aircraft accident, it is likely that many people damaged can be faced with a financial crisis, and the provision of advance payment for air carrier's liability of compensation also needs to be applied to the case of aircraft operator's liability. Fourth, the aircraft operator now shall be liable to the damages which occur in land or water except air according to the current Air Transport Act of Korean Commercial Law. However, because the damages related to the aircraft operation in air caused by another aircraft operation are not different from those in land or water. Therefore, the term of 'on the surface' should be eliminated in the term of 'third parties on the surface' in order to make the damages by the aircraft operation in air caused by another aircraft operation compensable by Air Transport Act of Korean Commercial Law. It is desired that the Air Transport Act in Commercial Law including the clauses related to the aircraft operator's liability of compensation for damages to the third party be developed continually through the resolutions about its problems mentioned above for compensating the third party damaged appropriately and balancing the interest between the damaged and the aircraft operator.

• The Korean Journal of Air & Space Law and Policy
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• v.34 no.1
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• pp.203-234
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• 2019

The concept of denied boarding is defined in Article 2(j) of Regulation 261/2004 thus: "denied boarding means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation." So far as relevant to this case, to be entitled to compensation, if denied boarding, Article 3(2) provides a passenger must first come within the scope of the protection of the Regulation, which applies under the following conditions: "${\cdots}$.that passengers (a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in, as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time." This paper reviews the EU Cases such as Rodríguez Cachafeiro v. Iberia [2012] Case C-321/11; Finnair Oyj v. Timy Lassooy [2012] Case C-22/11; Caldwell v. easyJet Airline Co. Ltd. [2015] ScotSC 64. ECJ and Sheriff court of Scotland held that the concept of denied boarding, within the meaning of Articles 2(j) and 4 of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation No 295/91, must be interpreted as relating not only to cases where boarding is denied because of overbooking but also to those where boarding is denied on other grounds, such as operational reasons. Also, ECJ ruled that Articles 2(j) and 4(3) must be interpreted as meaning that the occurrence of extraordinary circumstances resulting in an air carrier rescheduling flights after those circumstances arose cannot give grounds for denying boarding on those later flights or for exempting that carrier from its obligation, under Article 4(3) of that regulation, to compensate a passenger to whom it denies boarding on such a flight.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.3-29
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• 2015

In case of C-410/11, Pedro Espada $S\acute{a}nchez$ and Others v Iberia $L\acute{i}neas$ $A\acute{e}reas$ de $Espa\tilde{n}a$ SA., ECLI:EU:C:2012:747, the passengers of a flight between Barcelona and Paris, whose baggage had been lost, lodged a claim before a Spanish court, asking for compensation. More specifically, the claimants were a family of four (two adults and two children), and had stored all their personal items in two suitcases, which had been checked in and tagged but never returned to the passengers in question. The four claimants relied on the Montreal Convention, ratified by the EU, which provides that each passenger can claim up to 1,000 SDRs in compensation (i.e. ${\euro}1,100$) in case his or her baggage is lost; thus, they sought to recover ${\euro}4,400$ (4,000 SDRs, i.e. 1,000 SDRs x4). The preliminary reference issue raised by the Spanish court to the CJEU regarded the $Montr\acute{e}al$ Convention's correct interpretation; in particular, it asked whether compensation should be available only to passengers whose lost baggage had been checked in "in their own name" or whether it is also available to passengers whose personal items had been stored in the (lost) baggage of a different passenger. The CJEU held that compensation had to be granted to all passengers whose items had been lost, regardless of whether these had been stored in baggage checked in "in their own name." In fact, it maintained that the real aim of the $Montr\acute{e}al$ convention is to provide passenger-consumers with protection for the loss of their personal belongings, so the circumstance of where these were being carried is not relevant. Nevertheless, the CJEU clarified that it is for national courts to assess the evidence regarding the actual loss of an item stored in another passenger's baggage, and maintained that the fact that a group of people were travelling together as a family is a factor that may be taken into account.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.109-134
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• 2014

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation of assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (Regulation No 261/2004) provides extra protection to air passengers in circumstances of denied boarding, cancellation and long-delay. The Regulation intends to provide a high level of protection to air passengers by imposing obligations on air carriers and, at the same time, offering extensive rights to air passengers. If denied boarding, cancellation and long-delay are caused by reasons other than extraordinary circumstances, passengers are entitled for compensation under Article 7 of Regulation No 261/2004. In Wallentin-Hermann v Alitalia-Linee Aeree Italiane SpA(Case C-549/07, [2008] ECR I-11061), the Court did, however, emphasize that this does not mean that it is never possible for technical problems to constitute extraordinary circumstances. It cited specific examples of where: an aircraft manufacturer or competent authority revealed that there was a hidden manufacturing defect on an aircraft which impacts on safety; or damage was caused to an aircraft as a result of an act of sabotage or terrorism. Such events are not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin. One further point arising out of the court's decision is worth mentioning. It is not just necessary to satisfy the extraordinary circumstances test for the airline to be excused from paying compensation. It must also show that the circumstances could not have been avoided even if all reasonable measures had been taken. It is clear from the language of the Court's decision that this is a tough test to meet: the airline will have to establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able - unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time - to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight.