• 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.24 no.2
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• pp.69-104
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• 2009

This study is to know the Enhancement of Aviation Safety for Low Cost Carrier in Korea through the long and mid term air safety policy. Especially, the aviation safety authorities of the developed countries in aviation establish action plans under the system plan of central government. Then the countries implement those plans systematically to the related aviation business so that they promote efficient air safety policy implementation. At this time, the Korean government should present the vision about an air safety and systematic strategic plan to cope with the future aviation industry change. Also, it is needed to establish a specific aviation safety action plan. Namely, an air safety master plan and long-term road map must be established. This paper deduces some implications through the abroad cases of aviation safety plan, and then tries to find the applying method of the implications to Korea in the rapidly changing aviation market in the 21st century. It is expected that this paper will help the Korean aviation industry to play a major role in the future. In oder to get suggestions aviation policies of advanced countries with regard to aviation safety, we have looked at the aviation policies of the U.S., the U.K., Australia and Japan, and also LCC's states overseas, LCC's safety policies in Korea, and aviation safety status. Since existing LCCs and new LCCs based in Korea have become the new concept, this new market for LCC has been booming recently. Around Southeast Asia, while there are some LCCs including Air Asia which is supported by the government of Malaysia with emphasis on safety, there are other LCCs, which have failed to achieve confidence in safety and have led to aircraft accidents and financial mismanagement, so we need to verify the safety of overseas LCCs, try to improve domestic LCCs in order to fly international routes and aid international aviation safety. LCCs have been increasing lately thanks to open skies policy and a wide variety of flights.lines. Air Busan, Jin Air, Jeju air, Eastar Air are in service. so the risk of new potential hazards may increase. Therefore it is necessary to take the initiative in aviation markets inside and outside of Korea and the safety management of new LCCs should be taken more seriously than ever before. Among overseas aviation safety policies, we need to implement the FAA's Filght Plan which has a specific Business Plan. I hope this thesis will help improve aviation safety locally and internationally.

• 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.31 no.2
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• pp.3-35
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• 2016

The United States Constitution gives power to the federal district courts to hear admiralty cases. 28 U.S.C. §.133, which states that "The district courts shall have original jurisdiction, exclusive of the Courts of the States, of any civil case of admiralty or maritime jurisdiction." However, the determination of whether a case is about admiralty or maritime so that triggers admiralty jurisdiction was not a simple question. Through numerous legal precedents, the courts have drawn a line to clarify the boundary of admiralty cases. This unique jurisdiction is not determined by the mere involvement of a vessel in the case or even by the occurrence of an event on a waterway. As a general rule, a case is within admiralty jurisdiction if it arises from an accident on the navigable waters of the United States (locus test) and involves some aspect of maritime commerce (nexus test). With regarding to the maritime nexus requirement, the US Supreme Court case, Executive Jet Aviation, Inc. v. City of Cleveland, held that federal courts lacked admiralty jurisdiction over an aviation tort claim where a plane during a flight wholly within the US crashed in Lake Erie. Although maritime locus was present, the Court excluded admiralty jurisdiction because the incident was "only fortuitously and incidentally connected to navigable waters" and bore "no relationship to traditional maritime activity." However, this historical case left a milestone question: whether an aircraft disaster occurred on navigable water triggers the admiralty jurisdiction, only for the reason that it was for international transportation? This article is to explore the meaning of admiralty jurisdiction over aviation accidents at US courts. Given that the aircraft engaged in transportation of passenger and goods as the vessels did in the past, the aviation has been linked closely with the traditional maritime activities. From this view, this article reviews a decision delivered by the Seventh Circuit regarding the aviation accident occurred on July 6, 2013 at San Francisco International Airport.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.337-371
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• 2015

In recent years, aviation safety has been facing new hazards due to the rapidly changing environment in which aircraft operation increasingly finds. Continuously increasing air traffic volume, integration of various cultures from many States, and many other changes are the causal factors of the new risks. To identify such new hazards and risks, the government of the Republic of Korea (ROK) established aviation safety reporting systems in accordance with the international standards of the Convention on International Civil Aviation. However, there are some misunderstandings by the government in operating and by the personnel who take part in these reporting systems. Everybody should understand that aviation safety reporting system is not a punitive measure but a tool for collecting data in order to improve safety. In addition, such a system can be utilized further to promote an improved awareness on the need for a proper safety culture on the part of both the government, the industry and the personnel. This paper includes studies on international standards, relevant regulations in the United States and the United Kingdom. Moreover, this paper proposes to the government of ROK several points to improve their own system, including integration of the existing reporting systems, improvement of reporting items, implementation of safety data taxonomy and the establishment of safety data protection.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.3-36
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• 2015

As of end of 2014, the population engaging in aviation activities for leisure has reached approximately 13 million, where approximately 356 cases involve a general aircraft, 200 cases involve light aircraft, and 636 cases involve an ULM. The industry for leisure has become a very promising industry in line with rapidly rising living standards which are expected to further increase in the future. The demand for such services is expected to increase over time. The purpose of this paper is to review the development and site selection of airfields in anticipation of these developments in the industry. While the government also has experience in the review of airfield location and candidate sites, it is not the government that carries out the actual construction. As such, the feasibility of the site needs to be verified in terms of actual construction. This study identified factors for Site Selection of factors through a review of related documents and existing research reports. A questionnaire was also used to collect the views of experts in the field, which was then analyzed. The Research model was confirmed in the layered form for an AHP analysis. The factors for Site Selection were identified as the technical / operational factors and economic / political elements for a two-stage configuration. The third step consisted of technical and operational elements. The final step is was constructed a total of 11 elements (weather, surface conditions, obstacle limitation surface, airspace conditions, operating procedures, noise problems, environmental issues, availability of facilities, construction and investment costs, contribution to the local economy, accessibility, demand / the proximity of demand). The surveys are conducted for more than 10 General and light aircraft pilots, professionals, and instructor. The analysis results showed a higher level in the technical / operating elements (73.2%) in the first step, while the next step sawa higher level of the operational elements (30.9%) than the other. The factors for Site Selection were any particular elements did not appear high, the weather conditions (17.5%), noise problems (19.8%), the proximity of demand (6%), accessibility (5.7%), environmental issues (11.1%), availability of facilities (8%), airspace conditions (7.9%), obstacle limitation surface (12%), construction and investment costs (4.2%) and to operating procedures (4.9%), contribution to the local economy (3.8%).

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.1
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• pp.3-54
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• 2013

Nowadays, major advanced countries in aviation technology are putting their effort to develop commercial and civil Unmanned Aircraft System(UAS) due to its highly promising market demand in the future. The market scale of commercial and civil UAS is expected to increase up to approximately 8.8 billon U.S. dollars by the year 2020. The usage of commercial and civil UAS covers various areas such as remote sensing, relaying communications, pollution monitoring, fire detection, aerial reconnaissance and photography, coastline monitoring, traffic monitoring and control, disaster control, search and rescue, etc. With the introduction of UAS, changes need to be made on current Air Traffic Management Systems which are focused mainly manned aircrafts to support the operation of UAS. Accordingly, the legislation for the UAS operation should be followed. Currently, ICAO's Unmanned Aircraft System Study Group(UASSG) is leading the standardization process of legislation for UAS operation internationally. However, some advanced countries such as United States, United Kingdom, Australia have adopted its own legislation. Among these countries, United States is most forth going with President Obama signing a bill to integrate UAS into U.S. national airspace by 2015. In case of Korea, legislation for the unmanned aircraft system is just in the beginning stage. There are no regulations regarding the operation of unmanned aircraft in Korea's domestic aviation law except some clauses regarding definition and permission of the unmanned aircraft flight. However, the unmanned aircrafts are currently being used in military and under development for commercial use. In addition, the Ministry of Land, Infrastructure and Transport has a ambitious plan to develop commercial and civil UAS as Korea's most competitive area in aircraft production and export. Thus, Korea is in need of the legislation for the UAS operation domestically. In this regards, I personally think that Korea's domestic legislation for UAS operation will be enacted focusing on following 12 areas : (1)use of airspace, (2)licenses of personnel, (3)certification of airworthiness, (4)definition, (5)classification, (6)equipments and documents, (7)communication, (8)rules of air, (9)training, (10)security, (11)insurance, (12)others. Im parallel with enacting domestic legislation, korea should contribute to the development of international standards for UAS operation by actively participating ICAO's UASSG.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.175-204
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• 2018

Recently, the aviation leisure business has been legislated, and related industries have become active base with increasing the light sports aircraft within the legislation system. However, in the light sports aircraft safety problem, it is often mentioned that the flight is in violation of the regulations, the lack of safety consciousness of the operator and lack of ability, and the personal operators have a risk of accident of light aircraft such as insufficient safety management and poor maintenance. At present, the maintenance of light sports aircraft is carried out by the A & P mechanic in accordance with the relevant laws and regulations, but it is difficult to say that it is equipped with qualification and expertise. It is not a legal issue to undertake light sports aircraft maintenance work on the regulation system. However, the problem of reliability and appropriateness is constantly being raised because airplanes, light sports aircraft, and ultra-light vehicle are classified and serviced in a legal method. Although legal and institutional frameworks for light sports aircraft are separated, much of it is stipulated in the aviation law provisions. Light sports aircraft maintenance work also follows the current aircraft maintenance system. In the United States, Europe, and Australia where General Aviation developed, legal and institutional devices related to maintenance of light aircraft were introduced, and specialized maintenance tasks are covered in the light aircraft mechanics system. As a result of analysis of domestic and foreign laws and regulations, it is necessary to introduce the qualification system for maintenance of light aircraft. In advanced aviation countries such as the United States, Europe, and Australia, a light sports aircraft repairman system is installed to perform safety management. This is to cope with changes in the operating environment of the new light sports aircraft. This study does not suggest the need for a light aircraft repairman system. From the viewpoint of the legal system, the examination of the relevant laws and regulations revealed that the supplementary part of the system is necessary. It is also require that the necessity of introduction is raised in comparison with overseas cases. Based on these results, it is necessary to introduce the system into the light aircraft repairman system, and suggestions for how to improve it are suggested.

• 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.25 no.1
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• pp.3-26
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• 2010

The European Union(EU) has recently introduced its Directive 2008/101/EC to include aviation in the EU ETS(emissions trading system). As an amendment to Directive 2003/87/EC that regulates reduction of the green house gas(GHG) emissions in Europe in preparation for the Kyoto Protocol, 1997, it obliges both EU and non-EU airline operators to reduce the emission of the carbon dioxide(CO2) significantly in the year 2012 and thereafter from the level they made in 2004 to 2006. Emission allowances allowed free of charge for each airline operator is 97% in the first year 2012 and 95% from 2013 and thereafter from the average annual emissions during historical years 2004 to 2006. Taking into account the rapid growth of air traffic, i.e. 5% in recent years, airlines operating to EU have to reduce their emissions by about 30% in order to meet the requirements of the EU Directive, if not buy the emissions right in the emissions trading market. However, buying quantity is limited to 15% in the year 2012 subject to possible increase from the year 2013. Apart from the hard burden of the airline operators, in particular of those from non-European countries, which is not concern of this paper, the EU Directive has certain legal problems. First, while the Kyoto Protocol of universal application is binding on the Annex I countries of the Climate Change Convention, i.e. developed countries including all Member States of the European Union to reduce GHG at least by 5% in the implementation period from 2008 to 2012 over the 1990 level, non-Annex I countries which are not bound by the Kyoto Protocol see their airlines subjected to aircraft emissions reductions scheme of EU when operating to EU. This is against the provisions of the Kyoto Protocol dealing with the emissions of GHG including CO2, target of the EU Directive. While the Kyoto Protocol mandates ICAO to set up a worldwide scheme for aircraft emissions to contribute to stabilizing GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, the EU ETS was drawn up outside the framework of the international Civil Aviation Organization(ICAO). Second, EU Directive 2008/101 defines 'aviation activities' as covering 'flights which depart from or arrive in the territory of a Member State to which the [EU] Treaty applies'. While the EU airlines are certainly subject to the EU regulations, obliging non-EU airlines to reduce their emissions even if the emissions are produced during the flight over the high seas and the airspace of the third countries is problematic. The point is whether the EU Directive can be legally applied to extra-territorial behavior of non-EU entities. Third, the EU Directive prescribes 2012 as the first year for implementation. However, the year 2012 is the last year of implementation of the Kyoto Protocol for Annex I countries including members of EU to reduce GHG including the emissions of CO2 coming out from domestic airlines operation. Consequently, EU airlines were already on the reduction scheme of CO2 emissions as long as their domestic operations are concerned from 2008 until the year 2012. But with the implementation of Directive 2008/101 from 2012 for all the airlines, regardless of the status of the country Annex I or not where they are registered, the EU airlines are no longer at the disadvantage compared with the airlines of non-Annex I countries. This unexpected premium for the EU airlines may result in a derogation of the Kyoto Protocol at least for the year 2012. Lastly, as a conclusion, the author shed light briefly on how the Korean aviation authorities are dealing with the EU restrictive measures.