• The Korean Journal of Air & Space Law and Policy
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• v.21 no.2
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• pp.55-69
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• 2006

Electronic ticketing ("e-ticketing") through the internet will be the most critical commercial tool in the international airline industry. Actually the International Air Transport Association(IATA) has announced that it's goal is to accomplish 100 percent implementation of e-ticketing worldwide by 2007. Domestically e-ticketing will be put into operation in a full scale from the next year(2007). Thus, we count on, sooner or later, e-ticketing will be accomplished globally. As a legal aspect, this e-ticketing raises many legal issues which are no longer subject to a static set of legal rules driven by judicial precedent because e-ticketing is carried out on the "cyber space" which is a new and developing law area. In this treatise, I studied these legal issues, specially on the time and place(jurisdiction) of the contract which are the most important issues based on the New Montreal Convention signed at Montreal on May 28, 1999, which would seem prove that the airline industry is receptive and capable of change. Upon this opportunity, I hope the more comprehensive legal study on the e-ticketing will be introduced in the near future.

• The Korean Journal of Air & Space Law and Policy
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• v.15
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• pp.40-66
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• 2002

The purpose of this paper is to investigate the legal controㅣ, by using the International Criminal Court(ICC) that will enter into force to the most serious crimes of concern to the international community as a whole, and regulates the jurisdiction with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; Cd) The crime of aggression. However, the existing ICC Statute excludes (e) Crimes, established under or pursuant to the treaty, which was regulated by the ICC draft statute that the International Law Commission(ILC) examined and submitted to the UN General Assembly in 1994, and which contained aircraft terrorism such as hijacking in the Hague Convention of 1970 or sabotage in the Montreal Convention of 1971 in Annex of ILC draft. Therefore, this paper examines the legal character of aircraft terrorism as one of the most serious crimes of concern to the international community as a whole, and suggests two kinds of legislative comments for the amendment of the ICC Statute including aircraft terrorism as an object of the jurisdiction of the Court, for suppressing aircraft terrorism in advance and ensuring equitable penalty by ICC system.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.1
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• pp.35-58
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• 2009

A treaty that governs the compensation on damage caused by aircraft to the third parties on surface was first adopted in Rome in 1933, but without support from the international aviation community it was replaced by another convention adopted again in Rome in 1952. Despite the increase of the compensation amount and some improvements to the old version, the Rome Convention 1952 with 49 State parties as of today is not considered universally accepted. Neither is the Montreal Protocol 1978 amending the Rome Convention 1952, with only 12 State parties excluding major aviation powers like USA, Japan, UK, and Germany. Consequently, it is mostly the local laws that apply to the compensation case of surface damage caused by the aircraft, contrary to the intention of those countries and people who involved themselves in the drafting of the early conventions on surface damage. The terrorist attacks 9/11 proved that even the strongest power in the world like the USA cannot with ease bear all the damages done to the third parties by the terrorist acts involving aircraft. Accordingly as a matter of urgency, the International Civil Aviation Organization(ICAO) picked up the matter and have it considered among member States for a few years through its Legal Committee before proposing for adoption as a new treaty in the Diplomatic Conference held in Montreal, Canada 20 April to 2 May 2009. Accordingly, two treaties based on the drafts of the Legal Committee were adopted in Montreal by consensus, one on the compensation for general risk damage caused by aircraft, the other one on compensation for damage from acts of unlawful interference involving aircraft. Both Conventions improved the old Convention/Protocol in many aspects. Deleting 'surface' in defining the damage to the third parties in the title and contents of the Conventions is the first improvement because the third party damage is not necessarily limited to surface on the soil and sea of the Earth. Thus Mid-air collision is now the new scope of application. Increasing compensation limit in big gallop is another improvement, so is the inclusion of the mental injury accompanied by bodily injury as the damage to be compensated. In fact, jurisprudence in recent years for cases of passengers in aircraft accident holds aircraft operators to be liable to such mental injuries. However, "Terror Convention" involving unlawful interference of aircraft has some unique provisions of innovation and others. While establishing the International Civil Aviation Compensation Fund to supplement, when necessary, the damages that exceed the limit to be covered by aircraft operators through insurance taking is an innovation, leaving the fate of the Convention to a State Party, implying in fact the USA, is harming its universality. Furthermore, taking into account the fact that the damage incurred by the terrorist acts, where ever it takes place targeting whichever sector or industry, are the domain of the State responsibility, imposing the burden of compensation resulting from terrorist acts in the air industry on the aircraft operators and passengers/shippers is a source of serious concern for the prospect of the Convention. This is more so when the risks of terrorist acts normally aimed at a few countries because of current international political situation are spread out to many innocent countries without quid pro quo.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.2
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• pp.79-112
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• 2010

The Beijing Convention of 2010 taken together effectively establishes a new broader and stronger civil aviation security framework. This adoption would significantly advance cooperation in prevent of the full range of unlawful acting relation to civil aviation and the prosecution and punishment of offenders. First, the Beijing Convention of 2010 will require parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing and financing acts of terrorism. These new treaties reflect the international community's shared effort to prevent acts of terrorism against civil aviation and to prosecute and punish those who would commit them. Second, this convention will also require States to criminalize the transport of biological, chemical, nuclear weapons and related material. These provisions reflect the nexus between non-proliferation and terrorism and ensure that the international community will act to combat both. Third, this Convention shall not apply to aircraft used in military, customs or police services. As a substitute, International Humanitarian Law will be applied in a case. Moreover, the National Jurisdiction and the application of the law will be extended farther. The treaty promotes cooperation between States while emphasizing the human rights and fair treatment of terrorist suspects.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.55-95
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• 2010

The meaning and application of 'lesion corporelle' in the context of a variety of mental or psychic injuries is less clear, while there is very little disagreement about its literal translation. U.S. Court decisions since Floyd allow recovery for a range of claims involving emotional injury under Article 17; in some cases there is no recovery, while in others there is full recovery, depending on the allegations and the nexus between the alleged injury and any related or accompanying physical injury. Courts are in agreement that pure emotional injury is not compensable under the Convention. Most courts agree that emotional injury is not compensable in those cases where it has resulted only in physical manifestations such as weight loss or sleeplessness. At the same time, most courts generally agree that emotional injury is compensable if it proximately flows from a physical injury. The issue as to whether the courts would associate PTSD with bodily injury as envisioned in the present Warsaw structure or even the new regime reflected in the Convention proposed by ICAO would largely depend on the extent to which courts would be ready to embrace the compelling scientific findings with regard to mental distress and its application within the term 'bodily injury'. Taken together, these points when the current under Article 17 of the Warsaw Convention, 'physical injury' notion of 'mental injury' is to be extended. Of course, the current terms of the Warsaw Convention have been maintaining a precedent for many countries appear to have a statue of the original purpose of the treaty does not contribute to the diffusion. Therefore, in future treaties 'bodily injury', the term 'injury', the term 'personal injury' or 'health undermined' the term should be replaced or revised.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.95-116
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• 2015

Air transport agreement can be divided into air passenger contract of carriage and aviation also of the contract of carriage. And air carriers for damages greater (1) cause reason, of (2) limit reason, (3) exemption reason. Exemption reason for the extinction of the liability for damages in our Commercial Code, the Convention and domestic law are mixed. Convention on the Commercial Code and air transport, air transport people, if it is proved and that it has taken all the measures that are needed for the prevention of damage to overdue damage of passengers, liability is waived. So what was to achieve the requirements of all the actions that are reasonably necessary in any case is a problem. Amendment has the feature that the treaty for the International Air Transport reflect in accordance with the domestic situation, while being struck by international standards encompassing land, sea and air transport, even on the system. However, Commercial Code while mainly reflect the Montreal Convention governing air carrier's liability issues on the contract of carriage, a problem which the Convention had also began to occur together. So the problem due to accept the treaty to fit the domestic situation occurs. There is a need for analysis of all of the actions that are "reasonably necessary, which is defined in the Commercial Code. If there is no claim within Value Date rotor two years to air carriers on the court for the damage caused by air transport, the responsibility of air carriers disappear, sued the period of such two years, what kind of meaning on domestic law extension and stop to be whether it is interpreted, it should be determined to do their aggressive measures for the reasonable care and accident prevention.

• Proceedings of the Korea Institute of Fire Science and Engineering Conference
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• 1997.11a
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• pp.564-572
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• 1997

Following the ratification of Vienna Convention for Ozone Layer Protection and Montreal Protocol, Indonesia will implement the phasing-out of to halon at end 1996. Questions are increasing especially from the users where halon has used for many years as the most effective fire extinguishing agent, concerning halon substitutes, alternative systems as well as the handling and utilization of the existing halon. Halon can still be used for critical and essential uses, however, such usage has been gradually eliminated, due to the emergence of halon-like replacement. A concept of halon banking system is proposed to considered, taking into account several aspects such as enforced regulation, institutional involvement technology as well as financing. This paper gives a general overview regarding phase-out implementation, alternative extinguishing systems and concept on halon banking system with special reference to Indonesian case.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.137-168
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• 2020

Air passengers may be compensated for damages based on the above agreement when the passenger suffers an accident to the extent that they are recognized as an accident under Article 17 of the Montreal Convention in 1999. If a flight or cabin crew and passengers both undergo an accident, passengers are subjected to compensation under the Montreal Convention however flight cabin crews will be compensated by the Labor Law, which is the governing law in the labor contract with the airline. The flight or cabin crew boarding the aircraft work is on a work contract, not a passenger transport contract. Therefore, if the flight or cabin crew on the aircraft is injured due to an accident, and the air carrier is liable for default due to a labor contract, the Labor Law, workers or survivors claim damages due to illegal acts against the employer. In which case, civil law will apply. In this regard, if a Chinese cabin crew working for a Chinese airline dies due to an accident in the Republic of Korea, whether the family of the deceased claims damages against the Chinese airline or not has international court jurisdiction in the Republic of Korea, which is the place of tort. We examined whether it is the law of the Republic of Korea or whether it's the Chinese law, the law applicable to the work contract, is applied. Also, Seoul District Court 1995.5.18. The sentence 94A 14144 was found that if the injured crew during the flight work was not satisfied with the insurance compensation under the Labor Standards Act and the Industrial Accident Compensation Insurance Act, he could claime to damage under the civil law against an air carrier or third parties responsible for the accident. This law case shows that you can claim a civil damage as a cause. In case of death due to an existing illness while on the way to work, the Korea Workers'Compensation and Welfare Service did not recognize the death of the deceased as an occupational accident, and the trial was canceled by the parents of the deceased for the survivor's benefit and funeral expenses. (Seoul Administrative Court 2017.8. 31. Although the sentence was judged as an occupational disaster in 2016, the 2016 8816 Decision), it was defeated in the appeals court (Seoul High Court 2018.7.19.Sentence 2017 No. 74186) and I criticized the judgment of the appeal by analyzing the deceased's disease and related the cause of it to workload. Sometimes, a flight or cabin crew is on board not for the flight duty such as transferring to another flight or returning to the home base or lay-over place after their scheduled flight, this is called "Deadheading". If the crew who is not considered the same as a passenger, but is not on duty, is injured in an accident, does the crew claim compensation for damages under the labor contract or whether the Montreal Convention is applied to the passenger. In conjunction with the discussion, there was a similar case, In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983), Demanes v. United Airlines, 348 F.Supp. 13 (C.D.Cal. 1972), Sulewski v. Federal Express Corp., 749 F.Supp. 506 (S.D.N.Y. 1990) and reviewed by the European Court of Justice (CJEU) at Wucher Helicopter GmbH and Euro-Aviation Versicherungs AG v. After examining several acts in several countries it's undeniably crucial to clearly understand the definition of "passenger" as stated in the Fridolin Santer case.

• The Korean Journal of Air & Space Law and Policy
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• v.1
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• pp.47-85
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• 1989

The Fundamental purpose of the Warsaw Convention was to establish uniform rules applicable to international air transportation. The emphasis on the benefits of uniformity was considered important in the beginning and continues to be important to the present. If the desire for uniformity is indeed the mortar which holds the Warsaw system together then it should be possible to agree on a worldwide liability limit. This liability limit would not be so unreasonable, that it would be impossible for nations to adhere to it. It would preclude any national supplemental compensation plan or Montreal Agreement type of requirement in any jurisdiction. The differentiation of liability limits by national requirement seems to be what is occurring. There is a plethora of mandated limits and Montreal Agreement type 'voluntary' limits. It is becoming difficult to find more than a few major States where an unmodified Warsaw Convention or Hague Protocol limitation is still in effect. If this is the real world in the 1980's, then let the treaty so reflect it. Upon reviewing the Warsaw Convention, its history and the several attempts to amend it, strengths become apparent. Hijackings of international flights have given rise to a number of lawsuits by passengers to recover damages for injuries suffered. This comment is concerned with the liability of an airline for injuries to its passengers resulting from aviation terrorism. In addition, analysis is focused on current airline security measures, particularly the pre-boarding screening system, and the duty of air carriers to prevent weapons from penetrating that system. An airline has a duty to exercise a high degree of care to protect its passengers from the threat of aviation terrorism. This duty would seemingly require the airline to exercise a high degree of care to prevent any passenger from smuggling a weapon or explosive device aboard its aircraft. In the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescene to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. A finding of willful misconduct on the part of an air carrier, which is a prerequisite to imposing unlimited liability, remains a question to be determined by a jury using the definition or standard of willful misconduct prevailing in the jurisdiction of the forum court. Through the willful misconduct provision of the Warsaw Convention, air carrier face the possibility of unlimited liability for failure to implement proper preventive precautions against terrorist. Courts, therefore, should broadly construe the willful misconduct provision of the Warsaw Convention in order to find unlimited liability for passenger injuries whenever air carrier security precautions are lacking. In this way, the courts can help ensure air carrier safety and prevention against terrorist attack. Air carriers, therefore, would have an incentive to increase, impose and maintain security precautions designed to thwart such potential terrorist attacks as in the case of Korean Air Lines Flight No.858 incident having a tremendous impact on the civil aviation community. The crash of a commercial airliner, with the attending tragic loss of life and massive destruction of property, always gives rise to shock and indignation. The general opinion is that the legal system could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. I would like to remind all passengers that every discovery of the human spirit may be used for opposite ends; thus, aircraft can be used for air travel but also as targets of terrorism. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the soverign rights of the states, and the human rights of the individuals. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co-ordinated measures. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.37-81
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• 2015

AirAsia QZ8501 Jet departed from Juanda International Airport in, Surabaya, Indonesia at 05:35 on Dec. 28, 2014 and was scheduled to arrive at Changi International Airport in Singapore at 08:30 the same day. The aircraft, an Airbus A320-200 crashed into the Java Sea on Dec. 28, 2014 carrying 162 passengers and crew off the coast of Indonesia's second largest city Surabaya on its way to Singapore. Indonesia's AirAsia jet carrying 162 people lost contact with ground control on Dec. 28, 2014. The aircraft's debris was found about 66 miles from the plane's last detected position. The 155 passengers and seven crew members aboard Flight QZ 8501, which vanished from radar 42 minutes after having departed Indonesia's second largest city of Surabaya bound for Singapore early Dec. 28, 2014. AirAsia QZ8501 had on board 137 adult passengers, 17 children and one infant, along with two pilots and five crew members in the aircraft, a majority of them Indonesian nationals. On board Flight QZ8501 were 155 Indonesian, three South Koreans, and one person each from Singapore, Malaysia and the UK. The Malaysia Airlines Flight 370 departed from Kuala Lumpur International Airport on March 8, 2014 at 00:41 local time and was scheduled to land at Beijing's Capital International Airport at 06:30 local time. Malaysia Airlines also marketed as China Southern Airlines Flight 748 (CZ748) through a code-share agreement, was a scheduled international passenger flight that disappeared on 8 March 2014 en route from Kuala Lumpur International Airport to Beijing's Capital International Airport (a distance of 2,743 miles: 4,414 km). The aircraft, a Boeing 777-200ER, last made contact with air traffic control less than an hour after takeoff. Operated by Malaysia Airlines (MAS), the aircraft carried 12 crew members and 227 passengers from 15 nations. There were 227 passengers, including 153 Chinese and 38 Malaysians, according to records. Nearly two-thirds of the passengers on Flight 370 were from China. On April 5, 2014 what could be the wreckage of the ill-fated Malaysia Airlines was found. What appeared to be the remnants of flight MH370 have been spotted drifting in a remote section of the Indian Ocean. Compensation for loss of life is vastly different between US. passengers and non-U.S. passengers. "If the claim is brought in the US. court, it's of significantly more value than if it's brought into any other court." Some victims and survivors of the Indonesian and Malaysia airline's air crash case would like to sue the lawsuit to the United States court in order to receive a larger compensation package for damage caused by an accident that occurred in the sea of Java sea and the Indian ocean and rather than taking it to the Indonesian or Malaysian court. Though each victim and survivor of the Indonesian and Malaysia airline's air crash case will receive an unconditional 113,100 Unit of Account (SDR) as an amount of compensation for damage from Indonesia's AirAsia and Malaysia Airlines in accordance with Article 21, 1 (absolute, strict, no-fault liability system) of the 1999 Montreal Convention. But if Indonesia AirAsia airlines and Malaysia Airlines cannot prove as to the following two points without fault based on Article 21, 2 (presumed faulty system) of the 1999 Montreal Convention, AirAsia of Indonesiaand Malaysia Airlines will be burdened the unlimited liability to the each victim and survivor of the Indonesian and Malaysia airline's air crash case such as (1) such damage was not due to the negligence or other wrongful act or omission of the air carrier or its servants or agents, or (2) such damage was solely due to the negligence or other wrongful act or omission of a third party. In this researcher's view for the aforementioned reasons, and under the laws of China, Indonesia, Malaysia and Korea the Chinese, Indonesian, Malaysia and Korean, some victims and survivors of the crash of the two flights are entitled to receive possibly from more than 113,100 SDR to 5 million US$ from the two airlines or from the Aviation Insurance Company based on decision of the American court. It could also be argued that it is reasonable and necessary to revise the clause referring to bodily injury to a clause mentioning personal injury based on Article 17 of the 1999 Montreal Convention so as to be included the mental injury and condolence in the near future.