• Journal of the Korean Society for Aviation and Aeronautics
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• v.17 no.4
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• pp.94-106
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• 2009

오늘날 항공기사고는 우리나라뿐만 아니라 세계도처에서 때때로 발생되고 있다. 특히 항공기에 대한 갑작스러운 테로 공격 또는 일반 항공사고에 기인된 항공기의 추락 및 물건의 낙하로 인하여 지상에 있는 제3자에게 손해를 입히는 경우가 간혹 발생되고 있다. 이와 같은 항공사건에 있어 가해자(항공기 운항자)는 피해자(지상 제3자 등)에 대하여 불법행위책임을 부담하게 되는데 이러한 사건들을 해결하기 위하여 1952년의 개정로마조약과 1978년의 몬트리올의정서 등이 있음으로 본 논문에서는 이들 조약의 성립경위 및 주요내용과 개정이유 등을 간략하게 설명하였다. 특히 2001년 9월 11일에 뉴욕에서 발생된 이른바 항공기 납치에 의한 동시다발 테러 사건의 피해는 4대의 항공기에 탑승한 승객 및 승무원 266명이 전원 사망하였고 워싱턴에 있는 미국 방성청사에서의 사망 및 실종이 125명, 세계무역센터에서의 사망 및 실종이 약5,000여명에 달하는 막대한 피해가 발생되었다. 9/11참사사건은 지상에 있는 제3자의 인적 및 물적 손해가 거액에 달하였음으로 이에 따라 영국의 로이드보험 등 세계보험업계가 크게 손실을 입게 되어 항공보험을 기피하는 현상이 생겨나 법적인 문제점이 제기되었다. 국제민간항공기구(ICAO)에서는 9/11사태 이후 이와 같은 테로 사건의 법적대응책과 자구책을 마련하기 위하여 약 8년간의 심의 끝에 항공기에 대한 테로 공격(불법방해 행위)과 1952년 개정로마조약의 현대화(일반위험) 등 새로운 2개 조약을 2009년 5월 2일에 성립시켜 공표하였다. 상기 새로운 2개의 조약 중 첫째 조약은 항공기의 불법방해 행위에 기인된 제3자에 대한 손해 배상에 관한 조약(Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft: 일명 불법방해조약이라고 호칭함: Unlawful Interference Convention)이고 둘째 조약은 항공기에 기인된 제3자에 대한 손해배상에 관한조약 (Convention on Compensation for Damage Caused by Aircraft to Third Parties: 일명 일반위험 조약이라고 호칭함: General Risk Convention) 이다. 본 논문에서는 이 새로운 2개 조약에 대한 ICAO가 주관한 성립경위와 주요 내용 및 필자의 논평을 제시하였고 이들 조약에 대하여 한국의 조속한 비준을 촉구하는 바이다.

• The Korean Journal of Air & Space Law and Policy
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• v.22 no.2
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• pp.27-51
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• 2007

The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.3-35
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• 2013

Air transport today is a means of transport that is optimized for exchanges between nations. Around the world, has experienced an increase in operating and the number of airline route expansion that has entered into the international aviation agreements in order to take advantage of the air transport efficient, but the possibility of the occurrence of air transport accidents increased. When compared to the accident of other means of transport, development of air transport accidents, not high, but it leads to catastrophe aviation accident occurs. Air Transport accident many international transportation accident than domestic transportation accident, in the event of an accident, the analysis of the legal responsibility of the shipper or the like is necessary or passenger air carrier. Judgment of the legal order of discipline of air transport accident is a classification of the type of air transport agreement. Depending on the object, air transport agreements are classified into the contract of carriage of aviation of the air passenger transportation contract. For casualties occurs, air passenger transportation accident is a need more discussion of legal discipline for this particular. Korean Commercial Code, it is possible to reflect in accordance with the actual situation of South Korea the contents of the treaty, which is utilized worldwide in international air transport, even on the system, to control land, sea, air transport and welcoming to international standards. However, Korean Commercial Code, the problem of the Montreal Convention has occurred as it is primarily reflecting the Montreal Convention. As a cause of liability for damages, under the Commercial Code of Korea and the contents of the treaty precedent is reflected, the concept of accident is necessary definition of the exact concept for damages of passengers in particular. Cause of personal injury or death of passengers, in the event of an accident to the "working for the elevation" or "aircraft" on, the Montreal Convention is the mother method of Korea Commercial Code, liability for damages of air carrier defines. The Montreal Convention such, continue to be a matter of debate so far in connection with the scope of "working for the lifting of" the concepts defined in the same way from Warsaw Convention "accident". In addition, it is discussed and put to see if you can be included mental damage passenger suffered in air transport in the "personal injury" in the damage of the passenger is in the range of damages. If the operation of aircraft, injury accident, in certain circumstances, compensation for mental damage is possible, in the same way as serious injury, mental damage caused by aviation accidents not be able to live a normal life for the victim it is damage to make. So it is necessary to interpret and what is included in the injury to the body in Korea Commercial Code and related conventions, non-economic damage of passengers, clearly demonstrated from the point of view of prevention of abuse of litigation and reasonable protection of air carrier it must compensate only psychological damage that can be. Since the compensation of delay damages, Warsaw Convention, the Montreal Convention, Korea Commercial Code, there are provisions of the liability of the air carrier due to the delayed arrival of passenger and baggage, but you do not have a reference to delayed arrival, the concept of delay arrangement is necessary. The strict interpretation of the concept of delayed arrival, because it may interfere with safe operation of the air carrier, within the time agreed to the airport of arrival that is described in the aviation contract of carriage of passenger baggage, or, these agreements I think the absence is to be defined as when it is possible to consider this situation, requests the carrier in good faith is not Indian or arrive within a reasonable time is correct. The loss of passenger, according to the international passenger Conditions of Carriage of Korean Air, in addition to the cases prescribed by law and other treaties, loss of airline contracts, resulting in passengers from a service that Korean Air and air transport in question do damage was is, that the fact that Korean Air does not bear the responsibility as a general rule, that was caused by the negligence or intentional negligence of Korean Air is proof, negligence of passengers of the damage has not been interposed bear responsibility only when it is found. It is a clause in the case of damage that is not mandated by law or treaty, and responsible only if the negligence of the airline side has been demonstrated, but of the term negligence "for" intentional or negligent "Korean Air's Terms" I considered judgment of compatibility is required, and that gross negligence is appropriate. The "Korean Air international passenger Conditions of Carriage", airlines about the damage such as electronic equipment that is included in the checked baggage of passengers does not bear the responsibility, but the loss of baggage, international to arrive or depart the U.S. it is not the case of transportation. Therefore, it is intended to discriminate unfairly passengers of international flights arriving or departure to another country passengers of international flights arriving or departure, the United States, airlines will bear the responsibility for the goods in the same way as the contents of the treaty it should be revised in the direction.

• The Korean Journal of Air & Space Law and Policy
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• no.spc
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• pp.225-246
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• 2007

This article is dedicated to my colleague and friend Professor Soon-Kil Hong, Ph.D, who is the famous President of the Korean Association of Air and Space Law and distinguished teacher at the prestigious Hankuk Aviation University. I had the honour and pleasure to teach there a few years ago - upon his gracious invitation. Professor Soon-Kil Hong has made a long, outstanding and impressive career in aviation and space activities, both from a practitioners and academic perspective. That is why I have tried to find a subject which addresses these facets of his personality although this humble article cannot do justice to the great merits of Professor Soon-Kil Hong. This article discusses the liability aspects for damages and injuries to passengers on suborbital flights, by examining: 1. Recent developments regarding space tourism 2. Suborbital flights in relation to the Chicago Convention 3. The application of space law treaties to space tourism 4. Potential candidates for liability regimes applying to space tourism 4.1 Introduction 4.2 Liability under international space law 4.2.1 The Outer Space Treaty (1969) 4.2.2 The Liability Convention (1972) 4.2.3 Conclusions 4.3 Liability under international private air law 4.3.1 Introduction 4.3.2 The Warsaw Convention (1929), as variously amended 4.3.3 The Montreal Agreement (1999) 4.3.4 Conclusions 5. Final observations

• 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.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 INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.615-641
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• 1999

Trade and the environment emerged as a major and complex issue for trade negotiators in the final stages of the Uruguay Round negotiations. The agreements and other international measures employing trade measures and trade sanctions for achieving global environmental objectives are Vienna Convention on the Protection of the Ozone Layer(1985), the Montreal Protocol on Substances that deplete the Ozone Layer(1987), The Framework Convention on Climate Change(1992), the Convention on Biological Diversity(1992), the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal(1992), the Convention on International Trade in Endangered Species of Wild Faunna and Flora(1975), the Rio Declaration, the Agenda 21, etc. The texts of the World Trade Organization(WTO) incorporated certain provisions which were designed to reflect some of the environmental concerns are Trade-Related Aspects of Intellectual Properity Rights(TRIPs), Trade-Related Investment Measures (TRIMs), the General Agreement on Trade in Services(GATS), and Technical Barriers to Trade(TBT) There is the possibility of conflict between multilateral environmental agreements and WTO agreements granting waivers against trade measures and sanctions. This remains a possibility, especially between countries which are Member of WTO and which are not Members of the relevant multilateral environment agreements, and countries which are Members of both the WTO and the relevant MEAs. Measures taken under the trade-related provisions of MEAs could potentially give rise to conflicts under obligations arising in WTO texts. If the parties in dispute are WTO members while they are not members of MEAs, the WTO provisions can be granted a certain priority in terms of international norms and vice versa. When the parties concerned are both WTO members and MEAs, it will be rational to grant the WTO provisions a priority. However, such measures should neither constitute a means of arbitrary or unjustifiable discrimination between countries where similar conditions prevail, nor create a disguised restriction on trade. Also any trade measures taken should be necessary to prevent developments in trade from endangering the effectiveness of an MEA and they should be proportional and least trade restrictive.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.1
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• pp.3-36
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• 2016

Recently, the Supreme Court of Korea delivered a milestone judgment about air related multimodal transport. At there, the mattered cargo, some expensive jewellery, was transported from Qingdao, China to downtown office of consignee at Seoul via Incheon airport in Korea. As an air waybill was issued in this case, there was an air transport agreement between consignor and air courier operator. After arriving at Incheon airport, the shipment was transport by land arranged by the air courier operator, who was a defendant in this case. Upon arriving at the final destination, it was found that the jewellery was lost partly and based on circumstantial evidence, the damage presumed to be occurred during the land transport. As a subrogee, the insurance company who paid for consignee filed an action against the air courier operator for damage compensation. Defendant contended that Montreal convention should be applicable in this case mainly for limited liability. The lower court of this case confirmed that applying the limited liability clause under Montreal Convention is improper under the reason that the damage in this case was or presumed to be occurred during surface transport. It was focused on the Montreal Convention article 18 which says that the period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. However, the Supreme Court overturned the lower court's decision. The delivered opinion is that the terms of condition on the air waybill including limited liability clause should be prevailed in this case. It seems that the final judgment was considered the fact that the only contract made in this case was about air transport. This article is for analysis the above decisions from the perspective that it is distinguishable between a pure multimodal transport and an expanded air transport. The main idea of this article is that under the expanded air transport, any carriage by land, sea or inland waterway only for the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment is still within the scop of air transport.

• The Korean Journal of Air & Space Law and Policy
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• v.21 no.2
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• pp.71-96
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• 2006

This paper intends to describe the carrier's duty for the delivery of international air cargo and the carrier's liability for the illegal delivery of cargo under the Montreal Convention, lATA Conditions of Carriage for Cargo and judicial precedents. Under the Article 13 of Montreal Convention, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charge due and on complying with the conditions of carriage. And unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives. Under the Article 18 of Montreal Convention, the carrier is liable for damage sustained in the event of the destruction or less of or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. And the carriage by air comprises by the period during which the cargo is in the carriage of the carrier. Under the Article 11 of lATA Conditions of Carriage for Cargo, carrier is liable to shipper, consignee of any other person for damage sustained in the event of destruction of loss of, or damage to, or delay in the carriage of cargo only if the occurrence which caused to the damage so sustained took place during the carriage as defined under Article 1. According to the precedent of Korean Supreme Court sentenced on 22 July 2004, the freight forwarder as carrier was not liable for the illegal delivery of cargo to the notify party (actual importer) on the airway bill by the bonded warehouse operator because the freight forwarder did not designate the bonded warehouse and did not hold the position of employer to the bonded warehouse operator. In conclusion, the carrier or freight forwarder should pay always attention the movement and condition of the cargo not to be liable for the illegal delivery of cargo.

• 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.