• The Korean Journal of Air & Space Law and Policy
• /
• v.1
• /
• pp.147-162
• /
• 1989

The current status of the application and interpretation of the Warsaw Convention and its subsequent Protocols in Asian countries is in its fredgling stages compared to the developed countries of Europe and North America, and there is thus little published information about the various Asian governments' treatment and courts' views of the Warsaw System. Due to that limitation, the accent of this paper will be on Korea and Japan. As one will be aware, the so-called 'Warsaw System' is made up of the Warsaw Convention of 1929, the Hague Protocol of 1955, the Guadalajara Convention of 1961, the Guatemala City Protocol of 1971 and the Montreal Additional Protocols Nos. 1,2,3 and 4 of 1975. Among these instruments, most of the countries in Asia are parties to both the Warsaw Convention and the Hague Protocol. However, the Republic of Korea and Mongolia are parties only to the Hague Protocol, while Burma, Indonesia and Sri Lanka are parties only to the Warsaw Convention. Thailand and Taiwan are not parties only to the convention or protocol. Among Asian states, Indonesia, the Phillipines and Pakistan are also parties to the Guadalajara Convention, but no country in Asia has signed the Guatemala City Protocol of 1971 or the Montreal Additional Protocols, which Protocols have not yet been put into force. The People's Republic of China has declared that the Warsaw Convention shall apply to the entire Chinese territory, including Taiwan. 'The application of the Warsaw Convention to one-way air carriage between a state which is a party only to the Warsaw Convention and a state which is a party only to the Hague Protocol' is of particular importance in Korea as it is a signatory only to the Hague Protocol, but it is involved in a great deal of air transportation to and from the united states, which in turn is a party only to the Warsaw Convention. The opinion of the Supreme Court of Korea appears to be, that parties to the Warsaw Convention were intended to be parties to the Hague Protocol, whether they actually signed it or not. The effect of this decision is that in Korea the United States and Korea will be considered by the courts to be in a treaty relationship, though neither State is a signatory to the same instrument as the other State. The first wrongful death claim in Korea related to international carriage by air under the Convention was made in Hyun-Mo Bang, et al v. Korean Air Lines Co., Ltd. case. In this case, the plaintiffs claimed for damages based upon breach of contract as well as upon tort under the Korean Civil Code. The issue in the case was whether the time limitation provisions of the Convention should be applicable to a claim based in tort as well as to a claim based in contract. The Appellate Court ruled on 29 August 1983 that 'however founded' in Article 24(1) of the Convention should be construed to mean that the Convention should be applicable to the claim regardless of whether the cause of action was based in tort or breach of contract, and that the plaintiffs' rights to damages had therefore extinguished because of the time limitation as set forth in Article 29(1) of the Convention. The difficult and often debated question of what exactly is meant by the words 'such default equivalent to wilful misconduct' in Article 25(1) of the Warsaw Convention, has also been litigated. The Supreme Court of Japan dealt with this issue in the Suzuki Shinjuten Co. v. Northwest Airlines Inc. case. The Supreme Court upheld the Appellate Court's ruling, and decided that 'such default equivalent to wilful misconduct' under Article 25(1) of the Convention was within the meaning of 'gross negligence' under the Japanese Commercial Code. The issue of the convention of the 'franc' into national currencies as provided in Article 22 of the Warsaw Convention as amended by the Hague Protocol has been raised in a court case in Korea, which is now before the District Court of Seoul. In this case, the plaintiff argues that the gold franc equivalent must be converted in Korean Won in accordance with the free market price of gold in Korea, as Korea has not enacted any law, order or regulation prescribing the proper method of calculating the equivalent in its national currency. while it is unclear if the court will accept this position, the last official price of gold of the United States as in the famous Franklin Mint case, Special Drawing Right(SDR) or the current French franc, Korean Air Lines has argued in favor of the last official price of gold of the United States by which the air lines converted such francs into us Dollars in their General Conditions of Carriage. It is my understanding that in India, an appellate court adopted the free market price valuation. There is a report as well saying that if a lawsuit concerning this issue were brought in Pakistan, the free market cost of gold would be applied there too. Speaking specifically about the future of the Warsaw System in Asia though I have been informed that Thailand is actively considering acceding to the Warsaw Convention, the attitudes of most Asian countries' governments towards the Warsaw System are still wnot ell known. There is little evidence that Asian countries are moving to deal concretely with the conversion of the franc into their own local currencies. So too it cannot be said that they are on the move to adhere to the Montreal Additional Protocols Nos. 3 & 4 which attempt to basically solve many of the current problems with the Warsaw System, by adopting the SDR as the unit of currency, by establishing the carrier's absolute liability and an unbreakable limit and by increasing the carrier's passenger limit of liability to SDR 100,000, as well as permiting the domestic introduction of supplemental compensation. To summarize my own sentiments regarding the future, I would say that given the fact that Asian air lines are now world leaders both in overall size and rate of growth, and the fact that both Asian individuals and governments are becoming more and more reliant on the global civil aviation networks as their economies become ever stronger, I am hopeful that Asian nations will henceforth play a bigger role in ensuring the orderly and hasty development of a workable unified system of rules governing international commercial air carriage.

• The Korean Journal of Air & Space Law and Policy
• /
• v.22 no.2
• /
• pp.109-133
• /
• 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
• /
• v.18
• /
• pp.9-39
• /
• 2003

The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

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

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